172
defendant had admitted the adultery. Here it should be men-
tioned that the inference adverse to the defendant drawn by the
Native Commissioner owing to the defendant’s failure to call Wil-
son does not appear to be justified as the defendant’s evidence
indicates that he did ask Wilson’s people for his address and
they could not give it; and the fact that the defendant added
that he did not ask all of Wilson’s people does not necessarily
imply that he did not ask those that mattered. However this
factor does not militate against the success of the plaintiffs case
as the other factors mentioned above, standing by themselves,
suffice to establish it. It follows that the first, second, third and
fifth grounds of appeal fail.
Turning to the remaining ground, i.e. the fourth, the plaintiff
was not cross-examined in regard to the delay in his taking action.
From the evidence for the plaintiff, it is manifest that there was
no appreciable delay in having the defendant charged with the
adultery after the adultery had come to the plaintiff’s knowledge
and, from the defendant’s evidence, it would appear that he and
not the plaintiff may well be responsible for the delay in the issue
of the summons in this case; for the defendant admitted in cross-
examination that immediately after his final meeting with the
plaintiff’s people in connection with the adultery, he left for Cape
Town where he remained for about a year, and there is nothing
to indicate that his address there was known to, or could be ascer-
tained by the plaintiff. It follows that the plaintiff may well not
have been in a position to have issued and had the summons in
this case served on the defendant until the latter’s return home,
see Rule 31 (3) of the rules for Native Commissioners’ Courts,
published under Government Notice No. 2886 of 1951. as
amended, and ex parte Minister of Native Affairs, 1941, A.D. 53,
at pages 58 and 59; and from the summons and the defendant’s
evidence, it is manifest that the plaintiff issued the summons and
had it served on the defendant without delay after the latter’s
return from Cape Town. Moreover, the defendant’s evidence
under cross-examination indicates that he may well not have taken
all the necessaary steps to ascertain Wilson’s address. It follows
that it has not been shown that the defendant was prejudiced in
his defence as a result of the plaintiff’s not having taken action
against him timeously and the fourth ground of appeal, therefore,
also fails.
Accordingly the appeal should be dismissed with costs.
For Appellant: Mr. Heathcote, King William’s Town.
For Respondent: Mr. Stewart, King William’s Town.
REPORTS
NATIVE APPEAL
COURTS
1958
VERSLAE
VAN DIE
NATURELLE-
APPELHOWE
THE GOVERNMENT PRINTER, PRETORIA
DIE STAATSDIiUKKER, PR E T O R I A
G.P.-S.52 1 3014— 1 958-9— 700.
5213014-4
Digitized by the Internet Archive
in 2016
https://archive.org/details/nativeappealcour00tran_25
OFFICERS OF THE NATIVE APPEAL COURTS.
AMPTENARE VAN DIE NATURELLE APPfcLHOWE.
1958.
CENTRAL NATIVE APPEAL COURT.
SENTRALE NATURELLE-APPELHOF.
President: R. WRONSKY succeeded by/opgevolg deur J. P.
COWAN.
Permanent Member/Permanente Lid: J. P. COWAN succeeded
by/opgcvolg deur N. P. J. O’CONNELL.
NORTH-EASTERN NATIVE APPEAL COURT.
NOORDOOSTELIKE NATURELLE-APPELHOF.
President: W. O. H. MENGE.
Permanent Member/Permanente Lid: R. ASHTON.
SOUTHERN NATIVE APPEAL COURT.
SUIDELIKE NATURELLE-APPELHOF.
President: H. BALK.
Permanent Member/Permanente Lid: H. W. WARNER.
5213014—5
Page
Bladsy
Case Index
Bladwyser van Sake
1958
Bontsa & Another: Mgedezi v 73
Buhlungu: Mzima v 24
Cule v. Cule 1
Dinkwanyane & Another: Magabe N.O. v 16
Ex parte Masilela 69
Gagela: Ngcobondwana v 33
Gcukumani v. N’tshekisa 28
Gobidolo: Zakhele v 76
Jonas: Maycnlle v 25
Keswa v. Willie 30
Khuzwayo: Langa & Another v 63
Kohlakala v. Kohlakala 38
Kumalo: Nzuza v 78
Langa & Another v. Khuzwayo 63
Lukele v. Mkalipi 87
Lushaba: Nhlabati v 18
Madleba: Sagatya v 53
Magabe N. O. v. Dinkwanyane & Another 16
Mangwanya v. Mapupa 21
Mapupa: Mangwanya r 21
Masilela: Ex parte 69
Masiza v. Nini 51
Mavela & Another v. Nomgwiqi 40
Mayentle v. Jonas 25
Mdhluli: Xaba v 81
Mdoda: Willie v 37
Mgedezi v. Bontsa & Another 73
Mkalipi: Lukele v 87
Mngxunya v. Tyikana 44
Moche v. Moche 59
Momiakgotla v. Pitje 82
Mzima v. Buhlungu 24
iii
Page
Bladsy
Ngcobo & Mvubu v. Ngcobo 14
Ngcobondwana v. Gagela 33
Nhlabati v. Llishaba 18
Nini: Masiza v 51
Njilo: Sabela v 58
Nkwanyana v. Nkwanyana 4
Nomgwiqi: Mavela & Another v 40
N’tshekisa: Gcukumani v 28
Nzuza v. Kumalo 78
Pitje: Monnakgotla v 82
Sabela v. Njilo 58
Sagatya v. Madleba 53
Thinta v. Thinta 71
Tyikana: Mngxunya v 44
Vundla v. Vundla 11
Willie: Keswa v 30
Willie v. Mdoda 37
Xaba v. Mdhluli 81
Zakhele v. Gobidolo 76
iv
Index of Subject Matter
Inhoudsopgawe
1958
Page
Bladsy
Adultery.
Conflict of laws — Native law principles not applicable to
divorce on ground of single act of adultery 53
Connivance — By close relative of husband — Contrary to
custom 76
Damages — Measure of, without pregnancy 28
Assault.
Actionable in Native law in Natal 63
Conflict of Laws.
Delict — Kraalhead’s liability — Not affected if wrongdoer is
issue of a civil marriage 74
Marriage— Refund of lobolo on divorce — Principles of
Native law not applicable 53
Native law not applicable to divorce on ground of single
act of adultery 53
Native law only applicable against background of ordinary
law 87
Costs.
Appeal — When appeal unnecessary 87
Attorney and client — Principles governing 53
Decision on point raised tnero mot it 71
Damages.
(See also “ Seduction ”).
Measure of — Adultery without pregnancy 28
— Assessment by court of appeal 24
Delict.
(See under specific headings and also under Kraolhead.)
Paoe
Bladsy
Evidence.
Corroboralion— In adultery cases 28
— In paternity cases 25
Labour “ passport ” — Not a public document 33
Onus of proof — Determined by pleadings 30. 38
—In paternity cases 25
Possession — No onus on bona fide possessor to account for
possession I
Fraud.
Rescission of judgment on ground of— Effect 82
Husband and Wife.
Divorce — Refund of lobolo—- Native law principles not
applicable 53
Jurisdiction.
(See “ Practice and Procedure ”.)
Kraalhead.
Responsibility for delicts of kraal inmates — Assualt in
Natal Native law 63
— Not affected if wrongdoer is issue of a civil marriage 73
— Not bound by default judgment against inmate 40
Land.
Transfer of undivided share — Joinder of co-owners 59
Lobolo.
Cattle — -Alternative money value under Natal Code 78
— Delivery of — Applicability of Ordinance 6 of 1904 (T). . . . 87
Refund — On divorce in civil marriage on ground of adul-
tery— Principles governing refund in Native law not
applicable 53
Maintenance.
(See under statute concerned.)
Marriage.
Native customary union described as such 28
Native Custom.
Translation of younger son as heir to another house not
competent in Zulu law II
Native Customary Union.
Dissolution — Action for by woman — Joinder of guardian
as co-plaintiff. 18
Nature of — Described as marriage 28
Page
Bladsy
Practice and Procedure.
Appeal — Condonation of late noting — Principles governing 14, 21,
44, 53.
— Ex parte, without service of notice or furnishing of secu-
rity— Not competent 69
— from chief's court — New cause of action 76
— Not possible if judgment has lapsed. 58
—from court purporting to be that of Magistrate 71
-Refusal to rescind default judgment rescinding prior
rescission by default based on fraud, is appealable 82
— Security can be waived 37
Default judgment — Against kraal inmate — not binding on
kraalhead 40
— Illegally entered — All subsequent proceedings vitiated. ... 87
Delay in bringing action — Prejudicial to success 30
Interpleader — From of judgment 44
— Proof, in relation to Qoma stock 44
Joinder of parties — Action for transfer of undivided share
in land acquired by prescription 59
— Guardian in dissolution of customary union 18
Judgment — Not possible on appeal from lapsed chief’s
judgment 58
— Rescission of default judgment — powers of Court 82
Jurisdiction — Of Native Appeal Court — In matters purpor-
ting to emanate from magistrate's court 71
— Of Native Commissioner's court in relation to mental
capacity 16
Record of case — Expunging from by Native Appeal Court 82
Review — Native Appeal Court Rule 22 — Condonation of
late filing of notice 82
— Meaning or “ irregularity or illegality ” 82
Rules of Court.
Native Appeal Courts:
—Rule I (2) 69
—Rule 5 (3) 37,69
—Rule 6 (1) 69
—Rule 16 25
— Rule 22 — Condonation of late filing of notice of review 82
—Meaning of “irregularity or illegality” 82
Native Chiefs’ Courts:
—Rule 9 (3) 21
Native Commissioners’ Courts:
—Rule 14 81
—Rule 73 (a) 82
— Rule 79 — Meaning of “ knowledge ” 82
—Rule 81 (2) 82
Seduction.
Damages — Pondo custom— Payable for every pregnancy — 40
— Tembu custom — Where no pregnancy ensues 33
Onus of proof. 33
VII
KuL
Bladsy
SlSA.
Essentials of contract in Natal
Statutes.
Acts — Cape :
—Act 7 of 1895 — Section 3 25
Acts — Union :
—Act 38 of 1927: 16
— Section 10 (1) (a) 16
— Section 15— expunging from record 82
—Act 18 of 1943— Section 2 (2) 59
Ordinances — Transvaal :
— Ordinance 6 of 1904— Section 29 87
Proclamations:
— No. 168 of 1932 (Natal Code of Native Law):
—Section 86 78
Succession.
Translation of younger son as heir to another house not
competent in Zulu law II
Trespass.
Test of liability is wrongfulness 51
WlFF.
Affiliation — Automatic in case of substituted sister 4
Balekela wife — Ranks according to order of marriage in
Zulu law 4
Substitute — Sister substituted for wife deceased without
son— Automatically affiliated to house of latter 4
Woman.
Widow — Dikazi — Seduction of — Penalty as in case of un-
married woman
40
-
1
NORTH-EASTERN NATIVE APPEAL COURT.
CULE v. CULE.
N.A.C. CASE No. 97 of 1957.
Pietermaritzburg: 22nd January, 1958. Before Menge, Presi-
dent. Ashton and Oftebro. Members of the Court.
NATIVE CUSTOM.
Sisa — Essentials of contract in .Natal.
Evidence.
Possession — No onus on bona fide possessor to account for pos-
session.
Summary: Plaintiff sued for the return of sisa stock. He
alleged that he had transferred the stock into the dipping
book of defendant, his widowed brother, who was an inmate
of plaintiff's kraal at the time; but that he never parted with
the stock, the object being merely to make the authorities
believe that defendant was the true owner. The defendant
thereafter left the plaintiff’s kraal and took the stock with
him. He denied that the animals had been sisa'd to him and
averred that he had bought them from plaintiff.
Held: An arrangement to transfer stock into the dipping book
of another without parting with the stock, made merely to
create a false impression of ownership, cannot be relied on
as a contract of sisa.
Held further: Defendant being in bona fide possession of the
stock is under no onus to account to plaintiff for his posses-
sion.
Appeal from the Court of the Native Commissioner, Bulwer.
Menge, President: —
In this matter we have, for good reasons shown, condoned the
late noting of the appeal. Plaintiff sued defendant, his full
brother, before a Native Chief for the return of four head of
cattle alleged to have been sisa'd to the latter some ten years ago
in order to overcome difficulties connected with the Government’s
measures against overstocking, whereby, it is alleged, stock owners
were required to reduce their herds. The defence was that the
cattle had been bought from plaintiff. The chief found in favour
of plaintiff. He found it difficult to believe that defendant had
bought the cattle.
In the Native Commissioner's Court the Chief’s judgment was
reversed to one for defendant with costs. The defendant who. at
the plaintiff's instance, was wrongly saddled with the onus to
commence before the Native Commissioner, stated that he had
bought the cattle from plaintiff about six years ago for £35 and
that he recently left plaintiff's kraal and took the animals with
him. Plaintiff’s case is this: He owned a large herd of cattle.
Fearing that he would be compelled to reduce their number he
had four of them entered in the dipping book of the defendant,
who was then a widower and an inmate of plaintiff’s kraal. But
the stock remained with plaintiff. They only separated for dipping
purposes. The defendant apparently took an entirely passive part
in these arrangements and seems only to have provided the use
of his dipping book. “ He never attended dipping tank and he
2
never knew anything ”, says plaintiff. This alleged sisa arrange-
ment took place about ten years ago. A year later plaintiff
quarrelled with defendant. “ After that,” says plaintiff, he
demanded his four head of cattle back and plaintiff threw defen-
dant out of his kraal. But this demand and throwing out
occurred, strangely enough, only early this year. When defendant
left his kraal he claimed the four head of cattle and plaintiff was
told at the Native Commissioner’s Court to hand them over. He
did so and then sued for their return before the chief.
Plaintiff’s evidence was given very confusedly, but it would
appear that he did not really intend to sue for the return of sisa
stock. He says that when he threw defendant out he did not
get his cattle back from defendant because he already had them.
He explains: “the book (i.e. defendant’s dipping book) was with
me and the cattle were with me.” His real cause of action seems
to have been that defendant was in possession of stock belonging
to plaintiff and which plaintiff had been obliged, against his will,
to hand over to defendant.
Only plaintiff and defendant gave evidence.
Plaintiff now appeals on various grounds, from which it appears
clearly that he again based his cause of action on sisa, and indeed
Mr. Swain argued the appeal before us on the basis of sisa.
Now the onus of proving that the stock he claims were sisa
cattle rested on the plaintiff. To discharge that onus he had to
prove, in accordance with the definition of sisa in the Natal Code
of Native law, that the stock had been deposited with defendant
on the understanding that he shall enjoy the use of them. But
on plaintiff’s own showing that was not the case. The arrange-
ment with defendant was not a sisa contract but a mere pretence
to hoodwink the authorities. As plaintiff himself said: “The
cattle were in my possession and they were only dipped in defen-
dant’s name. . . . My cattle and defendant’s cattle were dipped in
same tank. They were only separated when they were actually
being dipped.” Quite apart from the fact that — as the Native
Commissioner points out — one does not ordinarily sisa stock to
an inmate of one’s own kraal, the Courts will examine the inten-
tion of the parties with the view of establishing whether a con-
tract of sisa has in fact been concluded. In this case there clearly
was never an intention to sisa. One’s motives for concluding a
contract do not ordinarily affect its validity, and, of course, a sisa
contract can be validly concluded even if the object is to disguise
ownership, but the essentials of the contract must be present.
However, discarding all reference to sisa and viewing the claim
of plaintiff merely as a vindicatory action based on ownership,
the plaintiff is still saddled with the difficulty that defendant’s
evidence of purchase is strongly supported by the fact that plain-
tiff has at all times given out that the animals belonged to defen-
dant. The preponderance of evidence is clearly not in his favour.
The appeal is dismissed with costs.
Ashton, Permanent Member, dissenting: —
I find myself unable to agree with the learned President and
Member of the Court that this appeal should be dismissed.
The action canie before the Native Commissioner as an appeal
from a Chief’s Court. The plaintiff claimed the return of four
head of cattle which he said he had “ sisa’d with defendant as a
result of a law that said cattle were to be taken ”. Defendant
admitted having had four of plaintiff’s cattle, but contended he
had bought them from him.
The Chief found for plaintiff as prayed with costs, and defen-
dant thereupon appealed to the Native Commissioner.
3
In both the Chief’s and the Native Commissioner’s Court,
neither plaintiff nor defendant called any witnesses, and the pre-
siding officers had to decide the issue between the parties who
were full brothers, living for many of the relevant years in the
kraal of the plaintiff. The Native Commissioner allowed the
appeal and reversed the Chief's judgment, and plaintiff has now
appealed to this Court.
From the pleadings in the case, the onus was on the defendant
to prove that he bought the cattle and the Chief expressed him-
self in his reasons for judgment as finding “ it difficult to believe
that defendant bought these cattle from plaintiff ”. The Native
Commissioner in his reasons said he “ could not agree with the
Chief’s finding. The defendant gave his evidence in a straight-
forward manner and he described how the four cattle were bought
by him” and, after criticising the story told by plaintiff, he added,
“ Weighing the evidence of the one against the other the Court
found that the preponderance of probabilities was in favour of
the defendant and that his story should be believed.”
But the probabilities, to my mind, are all in favour of plaintiff.
He said he had a large number of cattle in the location and.
believing that he would have to reduce the number, he arranged
with his brother, who had less cattle than he, to register four of
his in his brother’s dipping book. When defendant left plaintiff’s
kraal he took these extra four head with him and that is how the
dispute arose. It is not very likely that plaintiff, who admittedly
was previously involved in a court case, would have sold four
heifers to his brother as defendant testified, when he had a large
number of cattle, and it is also unlikely that those heifers have,
over a period of years, had no offspring, as defendant told the
Court was the case.
The Native Commissioner, although having said that defendant
gave his evidence in a straightforward manner, has not said any-
thing of plaintiff’s demeanour in the witness box. This Court is
accordingly in a position to judge of the probabilities of the two
stories and I am in no doubt that they favour plaintiff.
In my view the judgment should be:
The appeal is allowed with costs; the Native Commissioner’s
judgment is set aside and for it is substituted: “The appeal from
the Chief’s Court is dismissed with costs and the Chief’s judg-
ment for plaintiff, with costs, is upheld.”
Oftebro, Member:
I agree with the judgment of the learned President.
In my opinion the onus was wrongly placed on defendant and
it was for plaintiff to prove his case.
From the cross-examination of the defendant, it would appear
that plaintiff placed cattle with three other people in circum-
stances similar to those in which he alleges he placed the four
cattle with defendant. As he, plaintiff, was represented in the
Court a quo, one must assume that this was canvassed and that
it was decided not to call them as witnesses, and so rely solely
upon plaintiff’s extraordinary story. His story does not convince
me and I agree that the appeal should be dismissed with costs.
For Appellant: J. Swain.
For Respondent : H. L. Bulcock.
4
NORTH-EASTERN NATIVE APPEAL COURT.
NKWANYANA v. NKWANYANA.
N.A.C. CASE No. 76 of 1957.
Eshowe: 28th January, 1958. Before Ashton. Acting President,
Alfers and Botha, Members of the Court.
ZULU LAW AND CUSTOM.
Status of wives married by Native custom prior to 1932; Auto-
matic “ blood ” affiliation; “ Balekela ” wife. Opinion of Native
A ssessors.
Summary: The head of a kraal died having married four wives.
The first-married wife balekela’d him while he was engaged
to the woman whom he married next. His third-married
wife was the sister of the second-married wife — she was mar-
ried after the deaths of the latter and of the only male issue
of her house. The fourth-married wife does not enter into
the picture.
Plaintiff was the eldest son of the first-married wife and
defendant was the eldest son of the third-married wife. They
disputed the general heirship to their late father and certain
cattle in the estate.
The marriages were all by Native Custom and took place
in Zululand before 1932.
Held: (1) That in the absence of a declaration made in accor-
dance with Zulu custom the first-married wife was the Chief
wife;
(2) That the status of a “ balekela ” woman married during
the existence of an engagement to another woman who was
taken in marriage second in point of time was not affected
by the latter marriage;
(3) That the marriage of the sister of a wife who has died
and in whose house there was no male heir automatically
affiliated the house of the former to the latter.
Cases referred to:
Zulu v. Zulu. 1934, N.A.C. (N. & T.) 1.
Manqele v. Manaele, 1936. N.A.C. (N. & T.) 46.
Dhludhla v. Dhludhla, 1952, N.A.C. 263 (N.E.).
Ntaminemidwa v. Mpunyu, 1918, N.H.C. 27.
Appeal from the Court of the Native Commissioner, Mtunzini.
Ashton. Acting President (delivering the judgment of the
Court): —
The claim of plaintiff in this case which started in a Chief’s
Court was aptly recorded in these words “ I should like to know
who made you my father’s heir. Your mother is my father’s third
wife. 1 see you have assumed the position of an heir. I am the
heir for my mother is my father’s first wife.” Defendant’s reply
was just as aptly put; it was “ I am not aware that you are the
heir.”
The Chief declared defendant to be the heir, saying in his rea-
sons for judgment, that ”... Witnesses testify he (defendant) is
in the third house. The plaintiff is in the second house. Although
for both the witnesses are many {sic) the father couldn’t have
been wrong if he chose his heir from the third house. Native
practice allows this ”
5
The plaintiff appealed against the Chief's decision to the Court
of the Native Commissioner and there elaborated his claim to
include certain estate cattle which he maintained were his as heir
to his late father. Defendant’s plea was that plaintiff was not
the general heir to their father, Kaba, but that he (defendant)
was by virtue of the fact that his mother was affiliated to the
house of the chief wife. He went on to deny that plaintiff’s
mother was the first wife and contended that their father’s first
married wife was Oka Sidigida (Mbukubukwana) (to which house
his mother was affiliated).
The Native Commissioner after hearing evidence for both par-
ties allowed the appeal from the Chief’s Court with costs and
substituted for the Chief’s judgment the following “ For plaintiff
who is declared heir to the late Kaba and as such entitled to 28
(twenty-eight) head of cattle in Kaba’s estate. As to claim for 1 1
(eleven) head of cattle, defendant is absolved from the instance.
Defendant to pay costs.”
That judgment now comes on appeal to this Court at the
instance of defendant on the following grounds: —
“ 1. That the said judgment was bad in law in that —
(a) the marriages of Kaba Mkwanyana and his four wives
all having taken place prior to 1932, it was competent
for him to appoint his Chief wife at any time and
the learned Native Commissioner was therefore in
error in holding that it was not competent for him to
do so.
( b ) That the learned Native Commissioner erred in
holding that it was necessary for Kaba specifically
and formally to affiliate Oka Sidigida II to Oka Sidi-
gida I, as such “ affiliation ”, under the circumstances
constituted an automatic substitution, which required
no formality for its legality.”
* 2. That the said judgment was against the weight of evidence
in that —
(u) even if Kaba married Oka Sidigida after Oka Man-
qana, he appointed the former his Chief wife, as he
was entitled to do;
( b ) that it was amply proved, and the learned Native Com-
missioner accepted, that Kaba had been to the Chief
Somshoko to confirm the original appointment of Oka
Sidigida I as his chief wife;
(c) that it was amply proved, and the learned Native Com-
missioner accepted, that it had been the intention of
Kaba to affiliate or, more properly, to substitute Oka
Sidigida II in the place of Oka Sidigida I, who was
the Chief wife, and as such substitution was automatic,
the defendant would also automatically be Kaba’s
general heir.”
“ 3.. That the learned Native Commissioner accordingly erred in
holding that plaintiff was the general heir of the late Kaba
Nkwanyana.”
Some fifty or so years ago Kaba is said to have married his
first wife. Oka Manqana, having at the time been engaged to
another girl, Oka Sidigida; the reason given for the marriage of
the unengaged girl was that she had balekela’d Kaba to save the
family fortunes. Thereafter, on the death of Oka Sidigida, and
her son having died without male issue, Kaba took to wife her
sister Oka Sidigida, the second, and later on he took another
wife, Oka Mafunda. Plaintiff is the offspring of Oka
Manqana and defendant is the son of Oka Sidigida, the second,
who he contends, was affiliated to Oka Sidigida, the first.
6
The first point to come to a decision on is which woman Kaba
married first. It is clear that the Chief found that Oka Sidigida,
the first, was the first married wife and Oka Manqana the second
married wife but it would seem that he regarded Oka Sidigida,
the first, as the first married wife because he thought custom
made her so as she was the first one engaged. But Oka Manqana,
whose engagement to another man had been broken off, bale-
kcla’d Kaba who married her before he married his betrothed.
This is clear from the evidence and it would seem from the
grounds of appeal that the Native Commissioner’s finding that
it was so, is not challenged. Nor is it sought in the grounds of
appeal to suggest that the alleged custom that the first “ engaged ”
wife was regarded as the first married wife had the fore of law.
If it did not have such force then the question whether Oka
Sidigida, the second, was affiliated to her sister’s house or not
does not affect the general heirship question.
In the case of Zulu v. Zulu, 1934, N.A.C. (N. and T.) 1 it was
held that in the absence of a public declaration made in accor-
dance with Zulu custom there is no justification for ousting the
first married wife from her position as the “ Nkosikazi ”. In that
case the circumstances were not very dissimilar from those in the
present case and the decision in that case was followed in Man-
qele v. Manqele, 1936, N.A.C. (N. & T.) 46. Both these cases
emanated from Zululand as did the present case.
It will appear from the annexure to this judgment which sets
out the views of assessors who were called to the Court’s assis-
tance and to which reference is made later that they were of
opinion that the “ engaged ” girl who was married after the bale-
kela girl did not oust the latter. With this view this Court is in
agreement.
This brings us to a consideration of the first ground of appeal
and to deal with the first part of it, it is necessary to point out
that although Kaba took all his four wives before 1932 — the year
in which the present Natal code of Native Law came into force —
he made no verbal declaration before that date regarding his
chief wife, as he was entitled to do by the numerous decisions of
this and the Native High Court, and consequently his first mar-
ried wife would seem to be his Nkosikazi. This is clear from
the case of Dhludhla v. Dhludhla. 1952, N.A.C. 263 (N.E.), not
to mention others in which this Court has expressed the same
view.
As to the second part of the first ground of appeal it is clear
that if Oka Sidigida, the first, was not validly nominated chief
wife and was not the first wife Kaba married, then in so far as the
heirship question is involved it does not matter whether there was
affiliation of Oka Sidigida, the second, or not.
The first part of the second ground of appeal has already been
dealt with. If there was no appointment of a chief wife within
the time mentioned above it was not possible to make one after
that time. But the second part of this ground requires some
analysing. It is not correct that the Native Commissioner
accepted that Kaba went to Chief Somshoko “ to confirm the
original appointment of Oka Sidigida, the first, as his chief wife ”.
Kaba went to the Chief to find out how he would remedy his
omission to publicly appoint her his chief wife — the evidence is
clear on this point and the Native Commissioner found it to be
so.
The third part of the second ground of appeal fails in so far
as it relates to the contention that the general heirship is affected
because this Court has already decided above that Oka Sidigida.
the first, was not the chief wife. But it was clear from the views
of the assessors consulted by this Court — see the annexure hereto
—that the taking of Oka Sidigida, the second, to wife in the cir-
cumstances shown to have existed in this case amounted to an
7
automatic affiliation. With this view this Court is in agreement
and it draws some confirmation of such a custom from what was
said by Chadwick, J., in the case of Ntaminemidwa v. Mpunyu,
1918, N.H.C. 27 at page 28. There he is reported to have said: —
“ There are cases, however, in which what I may call an
automatic affiliation between wives takes place, and this has
happened in this very family. The late Msutshwana married
two sisters. . . . These two wives, though both junior wives
were affiliated to each other by blood. ... He has recog-
nised the affiliation of blood.”
In expressing concurrence with the assessors and the opinion
quoted above this Court wishes to make it clear that it does not
express the view that any marriage between a man and two or
more sisters is automatically an affiliation of the later married
sister’s hut to the hut of the earlier married sister. It is only in
circumstances prompting a necessity for an affiliation — such as
appeared in this case — that the affiliation becomes automatic.
It would seem clear then that the claim by plaintiff for the
eleven head which were paid for Joel’s daughter. Tali — Joel was
the eldest son of Oka Sidigida, the first — and which plaintiff said
were wrongly used by defendant, were in law rightly his, defen-
dant’s property. To this extent the appeal must succeed.
It is appropriate to mention here that some of the points of
Native Law and Custom which were quoted in the course of this
case were referred to assessors called in terms of section nineteen
(1) of Act No. 38 of 1927. The questions put to them and the
answers they gave form the contents of the annexure to this judg-
ment.
The result is that the appeal of the defendant to this Court
succeeds in part and fails in part and the judgment of this Court
is — -
It is ordered that the appeal in so far as it relates to the
decision that plaintiff is the general heir of the late Kaba
Nkwanyana and as such is entitled to twenty-eight head of
cattle in Kaba’s estate is dismissed and in so far as the eleven
head are concerned it is upheld and the Native Commis-
sioner’s judgment in this respect is altered from “ defendant
is absolved from the instance ” to “ judgment is awarded to
defendant for eleven head of cattle.” Defendant (appellant)
to pay two-thirds of plaintiff’s (respondent’s) costs in all
courts.
For Appellant: Wynne & Wynne.
Respondent in person.
8
ANNEXURE.
Assessors :
1. Gilbert George Mkize of Nongoma, Zululand.
2. Ndesheni Zulu of Nongoma, Zululand.
3. Ntsoyi Mpungose of Mtunzini. Zululand.
4. Manyikwana Biyela of Eshowe, Zululand.
OPINIONS OF THE ASSESSORS.
Oustion 1:
If a man were engaged to a girl and before marrying her
married a girl who balekelu'd him would the former girl oust the
latter as his chief wife although married second in order of
time?
Answers :
Gilbert George Mkize:
My opinion is that where a man marries a balekela girl before
the girl to whom he is engaged he must, if he wishes the engaged
girl to be his chief wife, make a declaration at the marriage
ceremony that she is his chief wife. If he made no such declara-
tion she would be his second wife. The fact that there was a
prior engagement by ulugcu makes no difference to Zulu law
that the first wife is the chief wife.
Ndesheni Zulu:
I agree with Mkize.
(Note. — The engagement by giving an ulugcu is of no signifi-
cance other than that the girl accepts the man as a suiter. This
is guite different from preparing the thread to sew the isicoco
which is the engagement proper.)
Ntsoyi M pungose:
I agree. That is our custom. The husband must make a
declaration at the ceremony.
Manyikwana Biyela:
I agree with Mkize.
Question 2:
If the husband did not make the declaration at the time of the
celebration of the union could be remedy the omission by a
later declaration or by his conduct?
Answers :
Gilbert Mkize:
No, he cannot make a later declaration or by his conduct desig-
nate his chief wife. The appointment of a chief wife could only
be made at the celebration of the union of the woman selected
to be chief wife.
Ndesheni Zulu:
So far as I know, the custom followed is that the chief wife
is the first married wife amongst commoners. Important people
did nominate a chief wife later especially when the husband
married the daughter of an important man, but even then the
declaration must be made at the celebration of the union.
(The other two assessors agreed).
9
Question 3:
If the husband placed the first married wife in the “ ikohlo ”
section of the kraal and the “ engaged ” wife in the “ indhlum
kulu ” side immediately after the ceremony would that replace
a declaration at the ceremony?
Answers :
Gilbert Mkize:
The answer is that we are on the question of commoners who
had no “ ikohlo ” and “ indhlunkulu ” sections so that no signi-
ficance can be attached to the position of the hut in which he
placed her. The placing of the huts would not replace the making
of a declaration. The “ ikohlo ” only occurred with the “ king’s
donation of an ‘ isigodlo ’ girl to the man
Ndesheni Zulu:
1 do not see how a man could put the first wife in the “ ikohlo”
section and the second wife on the “ indhlunkulu ” side. The
position of the woman’s hut would not indicate that she would
bear the heir.
bJlsoyi Mpungose:
I support Ndesheni Zulu. A commoner with few wives can
put his huts anyhow and that would not alter the fact that his
first married wife is his chief wife.
(The fourth assessor agreed.)
Question 4:
Was the woman who prepared the thread for the “ isicoco ”
invariably the “ inkosikazi ”?
Answers :
Gilbert Mkize:
The girl who prepared the thread for the “ isicoco ” was always
the chief wife unless, while working on it, another girl married
the man before her.
(The other assessors agreed.)
Question 5:
If a man intends that his first wife shall not be his chief wife and
has in mind another girl whom he desires to make his chief wife
would he assume the “ isicoco ” only on the marriage of that
other girl? Would he not assume the “ isicoco ” when he took
the first wife?
Answers:
Gilbert Mkize:
No. the “isicoco” was put on to indicate that he was per-
mitted by the king to marry. If he had no “girl” he would ask
a female relative to put it on. The significance of the adornment
of an isicoco ” is that the man had the king’s permission to
marry.
(The other assessors agreed.)
10
Question 6:
Was a man obliged to marry a girl who “ balekela’d ” him?
Answers :
Manyikwana Biyela:
When a girl “ balekela’d ” a man he married her straightaway
and a hut was allotted to the couple. It would be unseemly for a
man to send a “ balekela ” girl away.
(The other assessors agreed.)
Question 1:
A man marries a woman who bears him a son and then dies;
the son dies without male issue; then the man marries his deceased
wife’s sister. Does this taking of the deceased wife’s sister
indicate an affiliation or any change of status of the deceased
woman’s house?
Answers:
Gilbert George Mkize:
The sister would be automatically affiliated to the late sister’s
house which would be “ vusa’d ”. The status of the house would
not be affected.
(The other three assessors agreed.)
Question 8:
If it is accepted that it was always the intention of the husband
that the “ engaged ” girl was to be his chief wife but no declara-
tion was made at the celebration of the union can she be regarded
as his chief wife? Can she because of that intention, not ver-
bally expressed, be regarded as his chief wife?
Answers :
Gilbert George Mkize:
No, she could not be regarded as his chief wife:
(The other three assessors agreed.)
11
NORTH-EASTERN NATIVE APPEAL COURT.
VUNDLA v. VUNDLA.
N.A.C. CASE No. 88 of 1957.
Eshowe: 29th January, 1958. Before Menge, President, Ashton
and Alfers, Members of the Court.
NATIVE CUSTOM.
Succession — Translation of younger son as heir to another house
not competent in Zulu law.
Summary: Defendant, as surviving brother of one Mazames-
wane, who died without male issue, received the dowry for
the daughters of the deceased. Plaintiff, son of a younger
half-brother of defendant claimed this dowry on the ground
that his father had been translated as heir to the house of
Mazameswane’s wife. The legality of the translation was in
issue and the Native Commissioner rejected the claim. In
argument after the evidence was heard defendant asked for
dismissal of the summons. The Native Commissioner gave
judgment for defendant.
Held: The translation of a younger son of one house in which
there is an heir to another house so as to become heir to
the latter house is not competent in Zulu law.
Held further: A successful party cannot obtain a more advan-
tageous judgment than he asks for.
Cases referred to:
Ngetshana Kumalo v. Mkitshwa Kumalo, 1932 N.A.C. (T. &
N.) 13.
Mambeni Sitole v. Nonsu Sitole, 1938 N.A.C. (T. & N.) 35.
Tom Butelezi v. Mavela Butelezi, 1948 N.A.C. (T. & N.) 85.
Jenti v. Jakeni, 1954 N.A.C. 90.
Appeal from the Court of the Native Commissioner, Mtunzini.
Menge, President (delivering the judgment of the Court): —
In this action the plaintiff claimed from defendant 57 head of
cattle, or their value, £285, being the balance of lobolo paid for
certain six women of an heirless house to which defendant would
normally have been heir, but into which the plaintiff claims that
his father was placed or translated as heir. Certain evidence was
led on behalf of the plaintiff and thereupon the parties submitted
for the Court’s decision the question whether in Natal Native law
an heir could be provided for an heirless house in such a manner.
The facts relevant to this legal issue are few and not disputed.
The following genealogical plan sets out the position: —
(2) (1)
Mazameswane
lOkaNkonkoni
I
All girls.
Mombana Ndabayake'
1 i
ukuNg-union ukuZal-union
I
OkaHuqula.
I
All girls. Mshini Defendant.
Plaintiff
12
Mombana was an eldest son. He never married. He had a
younger brother, Ndabayake, who married AkaHuqula, the
mother of defendant. He also had a half-brother, Mazameswane,
oldest surviving son of the common ancestor’s second house, who
married OkaNkonkoni. OkaNkonkoni had only daughters. After
the birth of defendant, his father, Ndabayake, died, and Mom-
bana formed an ukuzalela union with the widow. Out of this
union Mshini was born, the father of plaintiff. After the death
of Mazameswane, Mombana also became ngena husband to
OkaNkonkoni. but again the issue was only girls. Defendant col-
lected the lobolo for the six daughters of OkaNkonkoni, viz., 66
head of cattle in all, but he paid nine head as dowry for plain-
tiff's wife. Mshini was born at about the beginning of the cen-
tury and he was about 18 years of age when, it is alleged, he
was placed into the house of OkaNkonkoni. Plaintiff’s case is
that Mombana shortly before his death placed Mshini into Oka-
Nkonkoni’s hut as heir to her house and that plaintiff, as Mshini's
heir, is therefore entitled to the dowry for the girls of that house.
There is no allegation that the defendant was ever disinherited.
The Native Commissioner gave judgment for defendant with
costs, leaving aside the question (irrelevant at this stage) whether
the translation of Mshini to the house of OkaNkonkoni has been
proved on the evidence led, he held that it is not competent in
Zulu law for a kraalhead who has an heir to place a younger
brother of the latter’s house as heir into an heirless house.
The plaintiff now appeals against this decision in the following
terms : —
“ (1) The decision of the Native Commissioner was wrong in
law.
(2) The decision of the Native Commissioner in holding that
plaintiff had not made out a case to meet was wrong in
law and against the evidence and the weight of evidence
The plaintiff (appellant) reserves the right to amend and/or add
to the above after perusal of the Record and the written Judg-
ment of the Native Commissioner.”
These insufficient grounds of appeal cannot, of course, be enter-
tained. and the reservation of the right to amend or add to these
grounds is completely wrong practice which this Court has had
occasion before to deplore. There is no such thing as reserving
a future right of appeal and the practice must cease. However,
in this case, a proper application has been filed to amend the
grounds of appeal, and we have allowed this. The gist of these
amended grounds of appeal is that the judgment is wrong in law
in that such a translation of a son is competent, even without the
disinherison of defendant, in that the practice is analagous to the
recognised practice of ukungena.
The Native Commissioner is supported by ample authority ever
since the case of Sitole v. Sitole, 1938 N.A.C. (T. & N.) 35. The
earlier case of Kumalo v. Kumalo, 1932 N.A.C. (T. & N.) 13, in
which it was said that it is not competent for a kraalhead; to
translate a son from one house to another as heir is purely obiter
on the point; but in Sitole's case the defence relied on a transla-
tion of the defendant as heir to the eldest son of the qadi of his
father’s house and it was held by McLoughlin, President, that
this was incompetent. This reasoning was concurred in by at
least one of the two members and is therefore a decision on the
point ( vide the article appearing on p.6 of the S.A. Law Journal
for 1955 entitled Ratio dicendi and Divided Courts). Inciden-
tally, Sitole’s Case is badly reported. It does not make sense as
it stands. Comparison with the manuscript reveals that in the
13
first paragraph on page 36, the name “ Nkoto’s ” should be sub-
stituted for “ Nkoqo’s ” and the name “ Nkoto ” for “ Ngoqo ”,
Sitole’s case was followed in Radebe v. Radebe, 1943, N.A.C. (N.
& T.) 56; and in Butelezi v. Butelezi, 1948 N.A.C. (T. & N.) 85,
it also finds support.
No authority has been cited in favour of the plaintiffs conten-
tion that such a transfer of a son is lawful. It appears indeed
to be a recognised practice in the Cape, where there are a num-
ber of decisions supporting it from Sibozo v. Notshokovu, 1
N.A.C. 198 to Jenti v. Jakeni, 1954, N.A.C. 90. But that dif-
ference in customs, though fundamental, can probably be
accounted for. The ukungena custom, which among the Zulus
answers so usefully the need of providing an heir, is not practised
by the Xosas. These people, and probably the neighbouring
tribes influenced by them, must therefore resort to other means to
avert the harsh consequences of the strict application of the
rules of primogeniture in succession; and the translation of a son,
with due formalities, meets this need. However, whatever the
explanation may be, we see no justification for departing from
previous decisions on this aspect of the law in Natal.
It follows that the appeal must fail; but the Native Commis-
sioner was not correct in giving judgment for defendant. The
defendant did not prove his case. He proved nothing. The deci-
sion on the issue before the Court was that the plaintiff did not
make out a lawful claim and the judgment should have been one
of absolution. In any case the defendant himself asked in his
written argument that the claim be dismissed and the judgment
cannot be for more than he asks.
The appeal is dismissed with costs, but the Native Commis-
sioner’s judgment is altered to one of absolution from the instance
with costs.
Ashton ( Permanent Member):
I agree that the appeal be dismissed with costs and that the
Native Commissioner’s judgment be altered to one of absolution
from the instance with costs.
Alfers (Member):
I concur.
For Appellant; J. G. Barnes.
For Respondent: W. E. White.
14
NORTH-EASTERN NATIVE APPEAL COURT
NGCOBO AND MVUBU v. NGCOBO.
N.A.C. CASE No. 81 of 1957.
Durban: 4th February, 1958. Before Menge, President, Ashton
and Alfers. Members of the Court.
PRACTICE AND PROCEDURE.
Appeal — Condonation of late noting — Principles governing.
Summary: The facts appear from the judgments. After dis-
cussing the principles relative to condonation —
Held: (The President dissenting) that the application should be
granted as there was no prejudice, the noting was only a
month late, the delay was not shown to be unreasonable and
there was every prospect of success.
Cases referred to:
Qina v. Qina, 1939 N.A.C. (C. & O.) 41.
Appeal from the Court of the Native Commissioner, Umzinto.
Menge, President: —
This is an application for the condonation of the late noting
of an appeal in an action in which plaintiff successfully sued
the wife of his late son (defendant No. 1) and her father (defen-
dant No. 2) for payment of £29 (twenty-nine pounds), the pro-
perty of first defendant’s deceased husband, alleged to have been
appropriated by first defendant some three years before, when she
deserted plaintiff’s kraal. Judgment was granted on 1st May,
1957, and the appeal was noted by second defendant on 26th
June, 1957 — about a month late, no reasons for judgment having
been asked for.
It is trite law that an applicant for condonation must (a) explain
the cause of the delay and ( b ) show that he has reasonable pros-
pects of success. Either (a) or ( b ) alone is not sufficient. Now,
as regards (n) all that the applicant says is this: —
“ I am illiterate and unversed in Court procedure and I
truly believed that, at the proceedings before the Native
Commissioner 1 was not a party, but that I was present
merely for the purpose of asisting my widowed daughter, who
was first defendant in the case. My said daughter now resides
at my kraal and the respondent is her father-in-law and may
well be her guardian according to Native law and custom.”
No explanation is given why these factors should have pre-
vented applicant from taking steps at the proper time. The
second part of the statement has no relevance at all. In fact
it seems to contradict the first part. It is very hard to believe
that the applicant thought he was merely assisting his daughter
in the proceedings. He cross-examined the witnesses and gave
evidence himself; in any case, he heard the judgment and must,
therefore, have known to what extent he was affected. The
respondent, in a replying affidavit to which there is no replica-
tion, says: —
“ The applicant only thought of appealing against the
judgment when his cattle were attached by the Messenger in
satisfaction of this judgment.”
15
That is probably correct. On the papers before us it can only
be concluded that the applicant at first decided to ignore the
judgment which was given against him. Whether he was wilful
in that or just negligent, his attitude disentitles him to the indul-
gence of this Court, and I think that the application should be
dismissed. As, however, the majority of the Court arc not with
me in this regard the application is granted.
On the merits I agree that the case was wrongly decided in the
Court below. In fact, the summons does not even disclose a
valid cause of action. Mr. Wilson, who appeared before us for
the respondent conceded this.
The appeal is upheld with costs and the judgment of the Native
Commissioner altered to absolution from the instance with costs
as regards second defendant.
Ashton (Permanent Member):
Plaintiff sued jointly and severally Mbate Ngcobo assisted by
her father, Ngobo Mvubu, and Ngobo Mvubu in a Native Com-
missioner’s Court for £29 (twenty-nine pounds), £10 (ten pounds)
being the value of certain property and asked for an account of
certain moneys. Plaintiff was the father of first defendant’s hus-
band who had died and it was asserted by him that first defen-
dant had taken the £29 (twenty-nine pounds) and certain property
from his son’s kraal and had failed to account for certain moneys
she is said to have received from her late husband’s employers.
According to the summons second defendant was “ cited as the
father of defendant No. 1 and the money and the property was
spent at his kraal.”
Both defendants pleaded that they were not indebted to the
plaintiff but after hearing evidence for plaintiff and defendants
the Assistant Native Commissioner gave judgment for plaintiff
for the sum of £29 (twenty-nine pounds) and costs against defen-
dants jointly and severally and the claim for £10 (ten pounds)
and the claim for moneys unaccounted for were dismissed.
Against the whole judgment in so far as it affects him the
second defendant has appealed to this Court on a large number
of grounds to which he asked another four grounds to be added.
The appeal was noted about a month later than the last date
allowed by the Rules and appellant asked that the late noting be
condoned.
In support of his application appellant filed on affidavit in
which he said he truly believed that he was not actually a party
to the case but that he was cited merely to assist his daughter
who had been residing in his kraal since the death of her husband.
He added that he believed that his appeal would be successful.
This affidavit was replied to by respondent who declared that
applicant only thought of appealing against the judgment when
his cattle were attached in pursuance of the judgment and he
went on to say “ The mere application for condonation of the
late noting of appeal is only to gain time to raise money to release
the cattle which are now under attachment.”
This Court has for many years been consistent in its decisions
on these applications for condonation. It has followed the prin-
ciples enunciated in Quina v. Quina. 1939 N.A.C. (C. and O.) 41
(in which a number of leading cases are quoted). Where no pre-
judice to the respondent would result if condonation were granted
and there was a prospect of the success of the appeal it has
allowed the condonation sought.
In this case before us there is no suggestion that respondent
would be prejudiced, the noting was only a month late, the reason
for delay was not shown to be unreasonable and there is every
prospect of the appeal being successful. The condonation should,
therefore, in my view be granted.
16
(The learned member then dealt with the evidence and con-
tinued as follows): Whether or not the summons discloses a
cause of action — the point was not taken in the Native Commis-
sioner’s Court nor on appeal and the parties seemingly knew what
was meant in the summons — the plaintiff cannot succeed and the
appeal must be upheld. I would add here too that the summons
was drawn up by the Clerk of the Court and neither party was
legally represented.
In my view the appeal should be upheld with costs and the
judgment of the Assistant Native Commissioner should be altered
to one for defendant with costs.
Alfers (Member):
I concur in the view of learned Permanent Member that the
late noting of the appeal should be condoned.
I also concur in the learned President’s view that the appeal
succeeds with costs and that the Native Commissioner’s judgment
in so far as it relates to second defendant should be altered to
one of absolution from the instance with costs because the sum-
mons contains no allegations —
(a) that plaintiff was the lawful owner of the money;
(b) that first defendant took the money unlawfully; and
(c) that first defendant was residing in second defendant’s kraal
at the time of the commission of the alleged delict.
For Appellant: L. M. Mandy.
For Respondent: Adv. Wilson i/b Cowley & Cowley.
NORTH-EASTERN NATIVE APPEAL COURT.
MAGABE N.O. v. DINKWANYANE AND ANOTHER.
N.A.C. CASE No. 85 of 1957.
Pretorl\: 12th March, 1958. Before Menge, President, Ashton
and O’Connell, Members of the Court.
PRACTICE AND PROCEDURE.
Jurisdiction of Native Commisisoner's Court in relation to mental
capacity.
Summary: In an action in which plaintiff sought to deprive
defendants of the control of certain tribal funds the plaintiff
alleged that the head of the tribe, who was not a party to
the case, had lost his mental faculties and had in fact retired
long since from participation in the affairs of the tribe. The
allegation was made in an affidavit in support of an applica-
tion for an interdict and when the matter was ordered to go
to trial the application stood as summons in the action.
Defendants pleaded in bar that in as much as the action
sought to affect the mental status of the chief the Court had
no jurisdiction. Plaintiff appealed against a judgment up-
holding this plea.
Held: Reversing the judgment, that the plea was bad because
no actual order based on mental incapacity had been asked
for against the chief and because the question of his mental
state was in any case irrevelant as he had retired from active
participation in the affairs of the tribe.
17
Statutes referred to:
Section 10 (1) (a), Act No. 38 of 1927.
Cases referred to:
Mntuka v. Ngcemu, 1952 N.A.C. 129, approved.
Appeal from the Court of the Native Commissioner, Lyden-
burg.
Menge, President (delivering the judgment of the Court): —
This is an action concerning tribal funds amounting to £290
held by the Standard Bank. Lydenburg. The plaintiff’s case is
that these funds are held by the bank for the Micha Dingwanyane
Bapedi tribe under the control of the defendants; that recently
a tribal meeting was held investing plaintiff and another as secre-
tary. with the control of the funds, but that the defendants refuse
to sign the necessary documents to enable the bank to give effect
to this change.
Originally the matter came before the Native Commissioner as
an application, but later it was ordered that the parties proceed
to trial, the applicants’ affidavit to serve as particulars of sum-
mons. The result is that certain allegations which the applicant
placed on record in the applicant’s affidavit, but which would
not have been necessary for purposes of a summons, became part
of the pleadings. Among these allegations there appear the fol-
lowing (quoted to the extent to which they are relevant), viz. —
“ 2. That the Head of the Tribe is nominally Headman
Micha Dinkwanyane.
3. That the said Micha Dinkwanyane is an extremely old
man who has lost almost all his faculties and no longer takes
an active part in the administration of the affairs of the
Tribe.”
4. That the said Micha Dinkwanyane retired from active
participation in affairs of the Tribe from about 1949 and
that
5 the affairs of the Tribe were then taken over by
the wife of Johannes Dinkwanyane (first respondent) and
second respondent.”
In their plea hereto the defendants contend that Micha is in
fact the head of the tribe; that, although he is an old man, he
has not lost any of his faculties; that he already retired in 1936,
but that, though he no longer participates actively in the affairs of
the tribe, he nevertheless, gives advice to the tribe in tribal matters.
But the defendants also filed a special plea in bar, contending that
the Native Commissioner has no jurisdiction as the “ plaintiff
seeks to affect the status of Micha Dinkwanyane in respect of the
said Micha Dinkwanyane’s mental capacity ”. This special plea
was upheld by the Assistant Native Commissioner, and the plain-
tiff now appeals on the ground, inter alia, that the court was not
required nor obliged to make any declaration as to the status or
mental capacity of Micha Dinkwanyane.
Before us Mr. Beyers, for respondent, applied to raise a point
not taken in the Court below, namely, that the defendants had
been wrongly cited, in that they were not sued in their representa-
tive capacities but in their personal capacities. This application
was opposed and was refused by us. In view of our judgment
in the case it is open to the defendants to raise the point in the
Court below when the hearing is resumed.
In his reasons the Assistant Native Commissioner claims to find
support in the case of Mntaka v. Ngcemu, 1952 N.A.C. 129; but
Mr. Lubinsky argued before us, quite correctly that this case is
squarely against him. If evidence were to be given in regard
to Micha’s mental state of health and the Native Commissioner
18
were to find on that evidence that Micha has “ lost almost all
his faculties ”, as alleged, or that he is in fact a half-wit or that
he is non compos mentis this would not be opposed to his powers
in the least because this case is not a proceeding in which — to
quote from section 10 (1) (a) of the Native Administration Act,
1927 — the status of Micha in respect of mental capacity is sought
to be affected. The Native Commissioner was not asked to make
any order affecting the personal status of Micha and no finding
he might have made would have had the slightest effect on
Micha’s present status as an ordinary normal person. In fact,
as Mr. Lubinsky pointed out, the personal status of Micha or his
mental health had nothing to do with the proceedings. It is
common cause that he retired long ago from active participation
in the tribe’s affairs. It is also common cause that the control
of the funds is vested solely in the defendants. Micha and his
mental faculties had nothing to do with the actual claim before
the Court.
The appeal is upheld with costs. The Native Commissioner’s
judgment is set aside and the matter is referred back for further
hearing.
I may add that this Court views with concern the manner in
which this case has proceeded in the Court below. The value
of the subject matter of the claim is not high but the costs which
must have been incurred — to the Court’s mind most unnecces-
sarily — in the proceedings so far are altogether incommensurate.
The hope is expressed that the matter will now be brought to
trial on the peadings without further ado.
For Appellant: Adv. I. E. Lubinsky, i/b Schoeman & De
Villiers.
For Respondent: Adv. C. Beyers, i/b J. W. C. van der Hoven.
NORTH-EASTERN NATIVE APPEAL COURT.
NHLABATI v. LUSHABA.
N.A.C. CASE No. 96 of 1957.
Pretoria: 13th March, 1958. Before Menge, President, Ashton
and O’Connell, Members of the Court.
PRACTICE AND PROCEDURE - NATIVE
CUSTOMARY UNION.
Customary union — Dissolution — Action for by woman — Joinder
of guardian as co-plaintiff.
Summary: In an action by a woman assisted by her guardian
for dissolution of her customary union with defendant.
Held: (The President dissenting) that the action is not com-
petent, irrespective of the circumstances, unless the woman’s
guardian is joined as a party.
Cases referred to:
Thabea Mokgatle v. Erens Mokgatle, 1946 N.A.C. (T. & N.)
82.
Appeal from the Court of the Native Commissioner, Piet Retief
19
Menge, President (dissentiente): —
Plaintiff, a Native woman, assisted by her guardian— her eldest
surviving brother — sued her husband by customary union for dis-
solution of the union on the ground of excessive cruelty and
danger to life, and she also sued for custody of the six children
of the marriage. These children are at present with plaintiff.
Evidence was led for both sides and thereupon the Native Com-
missioner gave judgment for plaintiff with costs.
The defendant at first appealed merely on the facts, but he
applied for an amendment of his grounds of appeal and this was
allowed by the majority of the Court, the President dissenting.
The amended appeal is brought on four grounds. One of
these, ground (d) is that the dissolution was not justified on the
merits of the case; but we consider, and indeed counsel conceded
before us that the evidence fully supports the Native Commis-
sioner’s decision on this point. Ground (c) is pointless. It
reads : —
“ It is not alleged, neither is there any evidence to prove,
to what tribe the parties belong, nor is there any competent
evidence regarding the Native law and custom applicable.”
Ground («) attacks the dissolution as bad in law in as much
as “ a claim for dissolution of a customary union has no place
in Native law and custom actions in the Transvaal ”. This con-
tention is not correct. Natives in the Transvaal can, and do,
validly terminate their customary unions by private arrange-
ment, but there is nothing to prevent one of the partners from
obtaining a decree of dissolution from the Court. As a general
proposition this would seem to derive authority from the recently
published case of Sonia (Pty.), Ltd. v. Wheeler, 1958 (1) S.A. 555,
where Price, A.J.A., is reported at p. 559 to have said: “
the real question is whether a person who thinks he is entitled
to repudiate a contract has a right to approach the Court for
such a order, and there cannot be the slightest doubt that he has
such a right ”.
But members of this Court mero motu raised a further point:
Namely, that where a woman sues the proper procedure is to
join her guardian as co-plaintiff as was laid down in the case of
Thabea Mokgatle v. Erens Mokgatle, 1946, N.A.C. (T. & N.) 82,
and that, as that was not done in this case, the action was not
valid. Counsel for appellant did not deal with this point, not-
withstanding that it was put to him, but counsel for respondent
replied that this Court could overlook such a defect under the
powers contained in section 15 of the Native Administration Act.
It seems to me that as the plaintiff’s guardian was present, assisted
her in the action and gave evidence for her, the omission to cite
him as a co-plaintiff is indeed a mere technicality. The woman
herself certainly has a right of action. True, the guardian must
be joined, but if he joins in the action in actual fact, and no
claim is made by or against him and when there cannot possibly
be any prejudice, can it make any difference that he is not for-
mally joined? I do not thing so, but the majority of the Court
has decided that as the guardian was not joined as co-plaintiff
the plaintiff had no action. So we have the position that a point
which is at most a very trivial technicality, which was not raised
in the Court below, which was not raised on appeal and which
Counsel did not choose to make use of in argument before us, is
invoked — in the face of the provisions of section fifteen of the
Act. In my opinion the point is not well taken.
The last ground, (c), however, is well taken. It reads: “The
Court was not justified on the evidence in granting custody of
the children to the plaintiff ”, There is indeed nothing in the
evidence to indicate where the interests of the children would lie.
The Native Commissioner says he considers “ the mother of child-
ren, especially those of tender years, to be better suited to have
their custody but the record contains no indication as to the
ages or even the identity of the children concerned.
20
Actually, however, this is beside the point, as in Native law
(in which the plaintiff’s claim depends) a woman has no claim
to the custody of her children. Only her guardian has such a
claim. And the fact that he has not been joined as co-plaintiff
in the action is fatal to the claim for custody. It was not fatal to
the claim for dissolution because the woman was herself vested
with a legal right to sue. In the claim for custody she has no
such legal right and cannot sue. It is her guardian who must
sue.
Counsel for the plaintiff (respondent) argued that the woman
was entitled to bring the action because of her rights to her
illegitimate children in common law. But that argument cannot
be entertained for one moment. She was married by Native
custom. Her whole action for dissolution is dependent on Native
custom. How then could common law be invoked to decide the
custody issue? That would involve denying defendant the right
to rely on Native custom, in other words the Court would have
to reject the very existence of Native law. The plaintiff cannot
have it both ways : she cannot have legitimate children in Native
law and sue for their custody as illegitimate children.
The appeal ought, therefore, in my opinion, to succeed on the
custody issue. But in accordance with the decision of the
majority of the Court it is ordered that the appeal be and it is
hereby upheld; the judgment of the Native Commissioner is set
aside and for it is substituted: “The summons is dismissed with
costs”. No costs of appeal are awarded.
O’Connell, Member with whom Ashton. Permanent Member,
concurs) : —
Plaintiff, a Native woman, sued defendant, her customary-
union husband, for a “ cancellation of the customary union,
custody of her six children and costs.” She was assisted by her
guardian in the action and after hearing the evidence called for
the parties the Native Commissioner entered judgment for plain-
tiff with costs.
Against that judgment defendant has appealed to this Court
on the grounds inter alia that the order for cancellation of the
customary union was incompetent; the Court was not justified on
the evidence in granting the custody of the children to the plain-
tiff; that there was nothing to show to what tribe the parties
belong.
The Native Commissioner found that defendant had repeatedly
assaulted plaintiff and concluded that he so grossly ill-treated her
that she was entitled to have the union dissolved and he formed
the opinion that the welfare of the children would be the better
guarded by placing them in the custody of the mother rather
than with a father with tendencies to violence.
But before considering the facts of the case and the conclu-
sions based on them it is necessary to determine whether the
procedure adopted by the plaintiff was correct.
In the Transvaal dissolution of a customary union at the
instance of the wife is brought about by her guardian at her
request; she has no right to dissolve her union without referring
to him and she is generally completely dependent on him to take
the necessary steps to bring about the dissolution of the union.
The position is set out in the case of Mokgatle v. Mokgatle.
1946, N.A.C. (T. & N.) 82, by the learned President at page
84. He makes it clear that a wife cannot sue unaided for the
dissolution of her union and he goes on to say: “The customary
union is a contract between the husband and the wife’s guardian,
who must be a party ” (the underlining is mine).
21
It is clear that the procedure adopted before the Native Com-
missioner was irregular and he had no right to make the order
on the summons as it was before him.
As the union was not dissolved the claim for custody falls
away.
In the result it is ordered that the appeal be and it is hereby
upheld; the judgment of the Native Commissioner is set aside
and for it is substituted: “The summons is dismissed with costs”.
No costs of appeal are awarded because the decision of the Court
was not made on the grounds set out in the appeal, nor was the
point taken in the Native Commissioner's Court nor in this Court
by appellant’s counsel.
For Appellant: Adv. H. van Rensburg. instructed by A. E.
Language.
For Respondent : Adv. H. P. van Dyk, instructed by H.
Olmesdahl.
SOUTHERN NATIVE APPEAL COURT.
MANGWANYA v. MAPUPA.
N.A.C. CASE No. 34 of 1957.
Port St. John's: 4th February, 1958. Before Balk, President,
Warner and Wakeford, Members of the Court.
PRACTICE AND PROCEDURE.
Appeal from Chiefs’ Courts — Rule 9 (3) — condonation of late
noting of appeal — Native Commissioner’s discretion a judicial
one — Appeal Court’s right to interfere — Native Commissioner
to have Chief's reasons at hearing.
Summary: Application was made to a Native Commissioner’s
Court for condonation of late noting of an appeal from a
judgment of a Chief’s Court, and this was refused. This
decision was brought before this Court on appeal. The
Chief’s reasons were not before the Native Commissioner’s
Court when it heard the application.
Held: That, in terms of Rule 9 (3) of the Regulations for
Chiefs’ Courts the Native Commissioner had a discretion to
grant the application on good cause shown, and that it is
not open to the Appeal Court to interfere unless it is satis-
fied that the discretion was not exercised judicially.
Held further: That where delay in noting an appeal is due to
an attorney’s negligence, such negligence is, by itself, not
sufficient to debar his client from relief and the Court should
consider all the circumstances of the particular case in
deciding whether the applicant has shown something which
justifies a Court in holding that sufficient cause for granting
relief has been shown.
Held further: That it is advisable for the Chief’s reasons for
judgment to be obtained before an application for condona-
tion of the late noting of an appeal from his judgment is
heard in the Native Commissioner’s Court as they may be
important if the merits of the proposed appeal are relied
upon.
Cases referred to:
Rose and Ano. v. Alpha Secretaries, Limited, 1947 (4) S.A..
511 A.D.
Dhlongolo v. Dhlongolo, 1952 N.A.C. 226 (N.E.).
Gumede v. Nxumalo, 1953 N.A.C. 191 (N.E.).
Legislation referred to: Government Notice No. 2885 of 1951,
as amended, sections 9 (3) and 10 (1) (c).
Appeal from the Court of the Native Commissioner, Ngqeleni.
Balk (President):- —
This is an appeal from the judgment of a Native Commis-
sioner’s Court refusing, with costs, an application for condonation
of the late noting of an appeal against the judgment of a Chief’s
Court.
In terms of section 9 (3) of the Regulations for Chiefs’ and
Headmen's Civil Courts, published under Government Notice
No. 2885 of 1951, as amended, the Native Commissioner’s Court
had a discretion to grant the application on good cause shown
so that the appeal to this Court resolves itself to the question
whether the Court a quo, upon facts properly found, exercised
a judicial discretion in refusing the application; for it is not open
to this Court to interfere unless it is satisfied that the discretion
was not exercised judicially, see Goodrich v. Botha & Ors., 1954
(2) S.A. 540 (A.D.). at page 546.
It emerges from the affidavit filed in support of the applica-
tion, that the judgment of the Chief’s Court was delivered on
the 27th March, 1957, and that, on the 29th idem, the applicant
fully instructed his attorney, through a member of the attorney’s
staff in the absence of the attorney from his office, to note an
appeal from the judgment. It was not until the 20th June, 1957,
when the applicant interviewed his attorney as a result of his
cattle having been attached in pursuance of the judgment, that he
discovered that the appeal therefrom had not been noted
timeously by his attorney, i.e., that it had not been noted by the
latter until the 3rd June, 1957. The application for condonation
was made on the same day, viz., 20th June, 1957.
Beyond citing certain Native Appeal Court decisions on which
he apparently relied and stating that the instant case was not one
in which the indulgence sought should be granted, the Native
Commissioner gives no reasons for his refusal of the application.
As pointed out in argument on behalf of the appellant, the cases
cited by the Native Commissioner are not in point and, in my
view, it is quite clear that the Native Commissioner, in refusing
the application, did not exercise a judicial discretion. That this
is the position will be apparent from what follows.
The judgment in Rose and Ano. v. Alpha Secretaries, Limited,
1947 (4) S.A. 511 (A.D.), at page 518, indicates that where the
delay has been due to an attorney’s negligence, such negligence
by itself is not sufficient to debar his client from relief of the
nature here in question. There the Court considered that it was
undesirable to frame a comprehensive test as to the effect of an
attorney’s negligence on his client’s prospect of obtaining such
relief or to lay down that a certain degree of negligence will
debar the client and another degree will not; and it came to the
conclusion that it was preferable to say that the Court should
consider all the circumstances of the particular case in deciding
whether the applicant has shown something which justifies a
Court in holding, in the exercise of its wide judicial discretion,
that sufficient cause for granting relief has been shown, see page
519 of the report of that judgment.
23
In the instant case there can, to my mind, be no doubt that
such cause has been shown; for, as is clear from the supporting
affidavit and the viva voce evidence given at the hearing of the
application before the Court a quo, the applicant instructed his
attorney in good time to note the appeal from the judgment of
the Chief’s Court and it was through no fault on the part of the
applicant but entirely due to the negligence of his attorney that
that appeal was not timeously noted. It is equally clear from
the supporting affidavit and the viva voce evidence that the
applicant intended all along that that appeal should be prose-
cuted. In argument before this Court it was contended on behalf
of the respondent that the applicant had not taken the necessary
steps to ensure that the appeal was noted timeously in that he
had not. after having left instructions on the 29th March, 1957,
for the noting of the appeal, interviewed his attorney until the
20th June, 1957. But, to my mind, this contention is unsound
as the applicant was entitled to assume that his instructions to
his attorney for the noting of the appeal would be carried out
timeously without his reminding him thereanent before the period
prescribed for the noting of the appeal, i.e., forty days from the
date of the judgment, had expired. In the circumstances it would
be most inequitable that the applicant should be made to suffer
for his attorney’s negligence to the extent of being debarred from
proceeding with his appeal in the Native Commissioner’s Court.
It is unnecessary to consider the merits of the proposed appeal
to that Court as this issue has not been relied upon by either
side, see de Villiers v. de Villiers, 1947 (1) S.A. 635 (A.D.), at page
637.
A further point calls for mention, viz., the absence of the
Chief’s reasons for judgment. It is advisable that the Chief’s
reasons should be obtained before the hearing of an application
for condonation of the late noting of an appeal from his judg-
ment is proceeded within the Native Commissioner’s Court as the
merits of the proposed appeal may well be relied upon and the
reasons may then be of importance. In any event the Chief's
reasons should be before the Native Commissioner’s Court when
it hears an appeal from his judgment, unless, of course, they are
unobtainable, see Dhlongolo v. Dhlongolo, 1952, N.A.C. 226
(N.E.), at pages 228 and 229, and Gumede v. Nxumalo, 1953
N.A.C. 191 (N.E.). at page 192.
In the result the appeal to this Court falls to be allowed, with
costs, and the judgment of the Court a quo altered to read:
“ The application for condonation of the late noting of the appeal
from the judgment of the Chief’s Court is granted. The applicant
is to pay the costs of the application ”,
As regards the prosecution of the appeal from the judgment
of the Chief’s Court, the clerk of the Native Commissioner’s
Court should issue the notice for the hearing thereof in terms
of section 10 fl) (c) of the Regulations referred to above.
The Registrar is directed to forward a copy of this judgment
to the Law Society concerned for such action as it may deem fit
in regard to the attorney’s negligence in respect of which there
is no explanation.
24
SOUTHERN NATIVE APPEAL COURT.
MZIMA v. BUHLUNGU.
N.A.C. CASE No. 43 of 1957.
Umtata: 21st February, 1958. Before Balk, President, Warner
and Bates, Members of the Court.
PRACTICE AND PROCEDURE.
Assess merit of damages — remitttal of case by Appeal Court to
Native Commissioner for — no purpose served by remitting if
Appeal Court in as good a position as Court a quo.
Summary. — Plaintiff after an unsuccessful action for damages
in the Native Commissioner’s Court, succeeded in his appeal
to this Court. The appeal having succeeded on the merits,
the question of assessment of the damages to be awarded
to appellant arose. It was submitted that the case should be
remitted to the Native Commissioner for assessment of the
amount of damages.
Held. — That as this Court is in as good a position as the
Native Commissioner to assess the damages from the evidence,
no purpose would be served in remitting the case to him.
Cases referred to. — Matuli v. Billy, 1 N.A.C. (N.E.D.) 324.
Appeal from the Court of the Native Commissioner, Mqanduli.
Balk (President: —
This is an appeal from the judgment of a Native Commis-
sioner’s Court for defendant (now respondent), with costs, in an
action in which he was sued by the plaintiff (present appellant)
for damages in the sum of £80 far assault.
The defendant in his plea denied the alleged assault and
averred that the plaintiff’s injuries were sustained in a fight
provoked by the latter.
The appeal is brought on the ground that the judgment is
against the weight of the evidence.
There are inconsistencies and discrepancies both in the
evidence for the plaintiff and that for the defendant; but it
seems to me that the appeal turns on the probability arising from,
the injuries sustained by the plaintiff to his upper lip and teeth,
as the other probabilities cannot be regarded as decisive. The
plaintiff’s version is that the defendant came up to him at a beer
drink and, as he (plaintiff) turned, struck him on his mouth
with his stick whereupon he fell and the defendant then struck
him further blows which landed behind his right ear, on the
back of his neck and on his shoulders. According to the
defendant’s testimony, the plaintiff swore at him and went for his
stick. They met and fought. He struck the plaintiff horizontally
on the mouth with the point of his stick whilst facing him.
The plaintiff fell and he thereupon struck him twice on the
back between the shoulders. It is common cause that there had
been trouble between the parties prior to the beer drink.
The Assistant Native Commissioner came to the conclusion
that as the scar running from the right corner of the plaintiff's
mouth to his left nostril was a thin one, it was more consistent
with a cut or tear and that the defendant’s version was, therefore,
the more probable. But the Native Commissioner lost sight of
the fact that, according to the plaintiff’s testimony, which was
not controverted cn this point, the blow by the defendant on
his mouth also broke four of his teeth. It is hardly conceivable.-
25
(hat a blow with the point of a stick delivered as described by
the defendant, which cut or tore the upper lip so as to leave a
thin scar, would at the same time break four teeth, whereas a
full blow on the mouth, as alleged by the plaintiff, would do so;
and there is nothing to show that the wound on the upper lip
caused by such a blow could not, on healing, leave a thin scar.
It follows that the overriding probability favours the plaintiff’s
version and that the appeal succeeds.
It was submitted in this Court that in the event of the appeal
succeeding, the case should be remitted to the Native Commis-
sioner to assess the amount of damages. But, as this Court is
in as good a position as the Native Commissioner to assess the
damages from the evidence, no purpose would be served in
remitting the case to him, see Matuli v. Billy 1 N.A.C. (N.E.D.)
324; and on the basis adopted in that case, T consider that
£20 would be a fair award to the plaintiff in the instant case
as damages.
In the result the appeal should be allowed with costs, and
the judgment of the Court a quo altered to read: —
“ For plaintiff in the sum of £20, with costs.”
For Appellant: A. L. Wilkins, Mqanduli.
For Respondent : R. Knopf, Umtata.
SOUTHERN NATIVE APPEAL COURT.
. MAYENTLE r. JONAS.
N.A.C. CASE No. 45 of 1957.
Kino William’s Town: 13th March, 1958. Before Balk, Presi-
dent, Warner and Pike, Members of the Court.
PRACTICE AND PROCEDURE.
Appeal — Point not covered by grounds of appeal — Defective
summons — Point not taken mero motu — A bsence of prejudice
to defendant — Action under section three, Act 1895 (C) — Not
criminal trial — Onus of proof in paternity actious where defen-
dant admits intercourse.
Summary: Plaintiff obtained an order against defendant for
payment of maintenance for his illegitimate child by her,
under section three of the Deserted Wives and Children Pro-
tection Act, No. 7 of 1895 (C).
The defendant appealed on the ground, inter alia, that as the
case was of a criminal nature, the Assistant Native Commis-
sioner erred in deciding the issue on the balance of probabili-
ties (the defence in the Court below having been based on a
denial of paternity).
Counsel for appellant sought leave at the hearing to take
a point not covered by the grounds of appeal, viz., that the
summons had been signed by the Clerk of the Court and not
by the Native Commissioner as required by section two of
the Cape Act, and that the summons was, therefore, fatally
defective.
Held: The appellant is, in terms of Rule 16 of the Native
Appeal Courts’ Rules, limited to the grounds stated in his
notice of appeal, in the absence of an application under Rule
14 for leave to bring additional grounds.
26
Held further: That it is not incumbent upon this Court niero
motif to take the new point raised by Counsel as it has not
been shown that the defect in the summons complained of
resulted in substantial prejudice to the defendant.
Held further: That there is no legal requirement that corrobora-
tion of the complainant’s evidence must be present.
Held further: That, in order for the defendant to escape
liability for the maintenance of the child of a woman with
whom he admits having had intercourse, it is incumbent upon
him to prove that it was physically impossible for him to
have been the father of that child.
Cases referred to:
Rex v. Tucker, 1953 (3) S.A. 150.
Rex v. Baker, 1941 E.D.L.D. 64.
Rex v. Safeda, 1950 (2) S.A. 55.
De Souza v. du Preez, 1952 (2) S.A. 379.
Machaka v. Seripe, 1956 N.A.C. 207.
Mda v. Gcanga, 69 P.H. R. 24.
Legislation referred to:
Sections two and three of Act No. 7 of 1895 (Cape).
Sections ten his and fifteen of Act No. 38 of 1927, as
amended.
Rules 14 and 16, Government Notice No. 2887 of 1951.
Appeal from the Court of the Native Commissioner, Port
Elizabeth.
Balk (President): —
This is an appeal from an Assistant Native Commissioner’s
order made under section three of the Deserted Wives and Child-
ren Protection Act, No. 7 of 1895 (Cape), read with section ten
bis of the Native Administration Act, 1927, as amended, and
requiring the defendant (present appellant) to pay £2 per month
as maintenance for his illegitimate child by the complainant (now
respondent).
The appeal is brought on the following grounds: —
“ 1. That the Assistant Native Commissioner erred in holding
that this matter is a Civil case and not a Criminal case,
and consequently has decided the case in favour of appli-
cant on the balance of probabilities, whereas in fact the
case being of a Criminal nature he should have decided
the issues beyond a reasonable doubt, in which event the
matter should have been decided in favour of respondent.
2. That in any event, alternatively, in deciding the issue on the
balance of probabilities the Assistant Native Commissioner
erred in accepting the evidence of Applicant and witness
Magaba, who is a self-expressed biased witness in favour
of the applicant, whereas he should have accepted the
evidence of the respondent corroborated as it was by his
wife.
3. That the Assistant Native Commissioner erred that Respon-
dent's evidence was a bare denial and that his wife’s
demeanour was very weak, whereas in fact he did not take
into account the very weak demeanour of applicant and
her witness.”
At the outset of his argument. Counsel for appellant sought
leave to take a point not covered by the grounds of appeal, viz.,
that the Native Commissioner’s order was null and void in that
the summons had been signed by the clerk of the Native Com-
missioner’s Court instead of by the Native Commissioner himself
as required by section two of the Cape Act. In support of his
27
submission that the leave should be granted, he cited Rex v.
Tucker, 1953 (3) S.A. 150 (A.D.), and argued on the analogy there-
of that this Court should not allow a void order to stand in the
same way as in a criminal case an appellate tribunal would not
allow a conviction to stand on an indictment which disclosed no
offence. In the first place the appellant is, in terms of Rule
16 of the rules of this Court, limited to the grounds stated in his
notice of appeal in the absence of an application under Rule 14
of those rules for leave to bring additional grounds; and, secondly,
it is not for this Court to take the new point niero main — Coun-
sel’s arguments in reality is that it is its duty to do so — since
such intervention is in any event not called for here, in that it
has not been shown that the defect in the summons resulted in
substantial prejudice to the defendant and the proviso to section
15 of the Native Administration Act, 1927, lays down that in the
absence of substantial prejudice a judgment shall not be set aside
or reversed on appeal owing to a defect of the nature in question.
Counsel for appellant abandoned the first ground of appeal
and properly so as it is clear from the language of the relevant
provisions of the Cape Act, which are substantially the same
as those of the corresponding legislation in the other Provinces,
that the enquiry before the judicial officer is a civil and not a
criminal proceeding, see Rex v. Baker, 1941 E.D.L.D. 64. at page
65; Rex v. Safeda, 1950 (2) S.A. 55 (N.P.D.), at page 60; and de
Souza v. du Preez, 1952 (2) S.A. 379 (T.P.D.), at page 381. Con-
sequently it was not necessary to prove the case against the defen-
dant beyond a reasonable doubt which is the standard of proof
peculiar to criminal cases. The standard that was required in
these proceedings will be discussed later in this judgment.
Counsel for appellant took a further point, viz., that the com-
plainant’s evidence had not been corroborated as required by law.
But apart from the fact that this point is also not covered by
the grounds of appeal, there was in the instant case no legal
requirement that such corroboration must be present. That this
is so will be apparent from what is said when the standard of
proof here required is dealt with.
Turning to the remaining grounds of appeal, i.e.. the second
and third grounds. Counsel for appellant conceded that, as is
implicit therein, the Native Commissioner’s order was being
attacked solely on the paternity issue so that it is unnecessary
for this Court to consider whether the other requirements for
the making of such an order which are specified in Machaka v.
Seripe, 1956, N.A.C. 207 (C), at pages 208 and 209, were satis-
fied. Counsel contended that the onus of proving paternity
rested on the complainant and that on this basis the correct
judgment on the evidence was one of absolution from the instance.
The defendant, however, admitted in the course of his evidence
that he had sexual intercourse with the complainant. It is true
that he stated that he had ceased having intercourse with her
at about the time when she conceived, but even so to escape
liability his admission placed upon him the onus of proving
that it was physically impossible for him to be the father of her
child, see Mda v. Gcanga, 69 P.H., R. 24 (S.N.A.C.). It is
manifest from the evidence for the defendant that he did not
discharge this onus. That this is so is also apparent from
Counsel’s submission that the correct judgment was one of
absolution from the instance on the basis that the onus of proof
rested on the complainant.
In the result the appeal fails and should be dismissed. No
order as to costs of appeal is called for as the respondent was
in default.
For Appellant: Adv. M. Seligson of Port Elizabeth.
For Respondent : No appearance.
28
SOUTHERN NATIVE APPEAL COURT.
GCUKUMANI v. N’TSHEKFSA.
N.A.C. CASE No. 48 of 1957.
King William’s Town: 14th March, 1958. Before Balk,
President, Warner and Pike, Members of the Court.
PRACTICE AND PROCEDURE.
Sufficiency of evidence — Corroboration of evidence of guilty wife
concerning adultery — Use of term “ married ” to denote
existence of customary union between parties.
NATIVE CUSTOM.
Quantum of damages for adultery without pregnancy.
Summary: Plaintiff, having sued defendant for five head of
cattle or their value as damages for his adultery with the
former’s wife, as a result of which she had given birth to
a child, was awarded damages of three head of cattle or
their value. Defendant, who had denied the adultery,
appealed on various grounds, inter alia, that plaintiff, having
alleged a marriage in his summons and failed to prove it,
the Native Commissioner should have dismissed his claim.
The remaining grounds of appeal and details are immaterial
for the purpose of this report.
Held: That, in an action for damages for adultery, no corrobo-
ration of a wife’s evidence of her adultery with defendant
is required if there is otherwise a sufficient balance of
probabilities in the plaintiff’s favour.
Held further: That the accepted quantum of damages for
adultery which is not followed by pregnancy is three head
of cattle, as against five head when it is so followed, among
the tribes to which these scales apply.
Held further: That the defendant is not substantially prejudiced
by an averment in the summons that plaintiff is married to his
wife, when the evidence shows that his union with her was
a customary one.
Cases referred to:
Qata v. Nyubata & Another, 1 N.A.C. (S.D.) 290.
Gates v. Gates, 1939 A.D. 150.
Goodrich v. Goodrich, 1946 A.D. 390.
Zibaya v. Maguga, 1947 N.A.C. (C. & O.) 7.
Appeal from the Court of the Native Commissioner, Uiten-
hage.
Balk (President): — -
Good cause having been shown the late noting of the appeal
was condoned by this Court.
The appeal is from the judgment of a Native Commissioner’s
Court for plaintiff (now respondent) for three head of cattle
or their value, £24, in an action in which he claimed five head
of cattle or their value, £50, from the defendant (present appellant)
as damages for adultery with his wife, Sophie.
In his plea the defendant denied the alleged adultery and also
put the plaintiff to the proof of his allegations that he was
married to Sophie and that she had given birth to a child.
The appeal is brought on the following grounds: —
“ 1. That he erred in finding that there was proof that defen-
dant had intercourse with plaintiff’s wife.
2. That he erred in finding that defendant was the father of
the child born to plaintiff’s wife on 12th July, 1955.
3. That, plaintiff having alleged a marriage in his summons
and failed to prove it, the Native Commissioner should
have dismissed plaintiff’s claim and he erred in law in
holding that ‘ it is sufficient in a case of this nature in
which both parties are Natives to prove that some form
of marital relationship which is recognised by law exists
between plaintiff and his wife, and that defendant was
not prejudiced by the misleading allegation in the sum-
mons
4. That the Native Commissioner erred in holding that there
was corroboration of the evidence of plaintiff's wife.
5. That he erred in finding that at no time did defendant deny
intercourse.”
It is convenient to deal in the first place with the fourth
ground of appeal, viz., that there was no corroboration of the
evidence of the plaintiff’s wife.
In Qata v. Nyubata & Another, I N.A.C. (S.D.) 290 and in
a number of other decisions of the Native Appeal Courts, it is
stated that in order to succeed in a claim for damages for
adultery, it is essential that there should be corroboration of the
wife’s evidence of the alleged adultery where such adultery is
denied on oath by the defendant. Whilst this statement as a
rule of law is true in seduction cases, it seems clear, with res-
pect, that it does not obtain in adultery cases. That this is
so is apparent from the judgments in Gates v. Gates, 1939 A.D.
150, at pages 154 and 155, and Goodrich v. Goodrich, 1946 A.D.
390, at pages 395 and 396, where it is laid down that there is
not any variation in the standard of proof required in adultery
cases and that the ordinary rule in civil cases, viz., proof on a
preponderance of probability, applies also in adultery cases with
this reservation that in considering the question whether there
is a balance or sufficient balance of probabilities that the alleged
adultery has in fact taken place, the general improbability of
such an occurrence dictated by moral and legal sanctions against
immoral and criminal conduct, is a factor to be weighed; and
it is implicit in the second paragraph on page 155 of the report
of the judgment in Gates' case (supra) that the law does not
in adultery cases require a minimum volume of testimony so that
no corroboration of the wife’s evidence of adultery is required
if there is otherwise a sufficient balance of probabilities in the
plaintiff’s favour. Of course it may be that there is not a
sufficient balance of probabilities without corroboration, but in
that case corroboration is required to bring about such a balance
and. not as a rule of law in addition thereto.
Proceeding to a consideration of the first ground of appeal on
this basis, the Native Commissioner gives cogent reasons for
preferring the testimony for the plaintiff to that of the defen-
dant. He states that the plaintiff, his wife and his remaining
witness, Harry Daniel, gave their evidence in a very satisfactory
manner and that in particular Daniel gave the impression of a
genuinely honest and sincere witness. That Daniel was a reliable
witness is borne out by the fact that he was not cross-examined.
Then there is the false denial by the defendant of the money
transactions he had with the plaintiff and the latter’s wife as
deposed to by them, and the defendant’s failure to deny the
alleged adultery when confronted therewith, as established by
30
Daniel’s evidence. There can, to my mind, be no doubt that
these factors bring about a sufficient balance of probabilities in
the plaintiff’s favour in so far as the alleged adultery is con-
cerned. It is unnecessary to consider whether at any time prior
to the hearing of the case in the Court below the defendant
denied the alleged adultery, as the finding that he failed to do
so when confronted therewith by Daniel suffices for the purposes
of this case. It is also unnecessary to consider the paternity
issue in this case as the Court a quo awarded the plaintiff three
head of cattle only on a claim of five head and three head
constitute the accepted quantum of damages for adultery which
is not followed by pregnancy as against five head when it is,
amongst the tribes to which these scales apply, see Zibaya v.
Maguga, 1947 N.A.C. (C. & O.) 7. It follows that the first,
second, fourth and fifth grounds of appeal fail.
Turning to the remaining ground of appeal, viz., the third
ground, whilst the plaintiff stated in his summons that he was
married to his wife and whilst, on a proper construction, the
word “ married ” connotes a civil union, yet this word is often
loosely used to denote a customary union and the fact that
cattle or their equivalent in money were claimed as damages
in the instant case and not money only was an indication that
by “ married ” a customary union was intended. However that
may be, there is nothing to indicate that the defendant was sub-
stantially prejudiced by the plaintiff’s averment in the summons
that he was married to his wife, whereas the evidence adduced
by him showed that his union with her was a customary one, so
that, having regard to the proviso to section fifteen of the Native
Administration Act, 1927, this ground of appeal also fails.
In the result the appeal falls to be dismissed, with costs.
For Appellant: B. Barnes of King William’s Town.
For Respondent: E. M. Heathcote of King William’s Town.
SOUTHERN NATIVE APPEAL COURT.
KESWA v. WILLIE.
N.A.C. CASE No. 50 of 1957.
Umtata: 21st February, 1958. Before Balk, President, Warner
and Bates, Members of the Court.
PRACTICE AND PROCEDURE.
Onus of proof as fixed by pleadings does not shift. — Delay in
bringing action militates against success when no convincing
explanation offered.
Summary: Plaintiff, the heir to his late father, claimed that the
latter had advanced the equivalent of nine head of cattle
for defendant’s wife’s dowry, conditional upon its being
refunded from the dowry of the defendant’s first daughter;
that the said daughter had been given in marriage and that the
defendant refused to repay the stock.
The defendant denied the transaction and that any cattle
were payable to plaintiff, while admitting that he had given
his daughter in marriage.
31
Plaintiff succeeded before the Chief, and again successfully
defended an appeal to the Native Commissioner’s Court.
An appeal to this Court was noted by defendant. In his
reasons for judgment the Additional Native Commissioner
analysed the evidence, on the assumption that the onus of
proof rested on plaintiff and found that on this basis a
judgment for neither party was warranted. He, however,
came to the conclusion that the onus of proof had shifted
to defendant and on that basis found for the plaintiff, who
had delayed six years in bringing the action and offered the
explanation therefor that he was in no hurry.
Held: That the true onus of proof, i.e., the onus of proof
as fixed by the pleadings can never shift.
Held further: That long delay by a person in bringing an
action without convincing explanation therefor, is a factor
militating against the success of his case.
Cases reffered to:
Pillay v. Krishna & Another, 1946 A.D. 946.
Ngombane v. Mankayi, 1956 N.A.C. 115.
Appeal from the Court of the Native Commissioner, Umtata.
Balk, H. (President): —
This is an appeal from the judgment of a Native Commis-
sioner’s Court dismissing, with costs, an appeal against the
judgment of a Chief’s Court, and confirming the Chief’s finding
for the plaintiff (present respondent) for nine head of cattle or
their value £90.
The pleadings, as restated in the Native Commissioner’s Court
in terms of section twelve of the Regulations for Chiefs’ and
Headmen’s Civil Courts, published under Government Notice No.
2885 of 1951, as amended, read as follows: —
STATEMENT OF CLAIM.
“ 1. The parties are Natives.
2. Plaintiff’s father paid as dowry for defendant’s wife, 7
head of cattle, 1 dark filly and 10 sheep representing 9
head of cattle in all, it being a condition that these cattle
would be refunded out of the dowry of the first daughter
of defendant.
3. Plaintiff is the heir to his late father.
4. Defendant gave his first daughter Nongeteni in marriage
and received 1 1 head of cattle as dowry, but refuses to
hand to plaintiff the 9 head of cattle referred to or their
value £90.
5. Plaintiff obtained judgment in the Chief’s Court for 9 head
of cattle or their value £90 and prays that the appeal be
dismissed and that the judgment of the Chief’s Court
be reaffirmed with costs.”
STATEMENT OF DEFENCE.
“ 1. Defendant admits paragraph one of plaintiff’s particulars
of claim.
2. Defendant denies that plaintiff’s father paid any dowry for
him, the Defendant, and has no knowledge of any con-
dition that the defendant would repay any cattle to plain-
tiff’s father on the marriage of his daughter.
3. Defendant has no knowledge of paragraph three of plain-
tiff’s particulars of claim and puts him to the proof thereof.
32
4. Defendant admits having given his daughter in marriage
and admits his refusal to pay any dowry to the plaintiff.
5. Defendant admits paragraph five of plaintiff’s particulars
of claim but by reason of the foregoing denies he is
liable to the plaintiff and puts him to the proof of his
allegations of any agreement between defendant and plain-
tiff’s father as set out.”
The appeal to this Court is brought on the following
grounds : —
“( a ) That the Judgment is against the weight of evidence and
the facts proved in the case and against the probabilities.
( b ) That the Judgment should have been for the defendant or
should have been a judgment of absolution from the
instance by virtue of the fact that—
(1) The plaintiff did not adduce sufficient evidence in sup-
port of his claim more particularly as the Assistant
Native Commissioner, in his judgment made no
findings at all in respect of the credibility of defendant
or his witness;
(2) The plaintiff failed to discharge the onus upon him
and that the Assistant Native Commissioner erred in
casting the onus on defendant as stated in his verbal
judgment.”
The Additional Native Commissioner a quo analysed the
evidence and, on the assumption that the onus of proof rested
on the plaintiff, found that a judgment for neither party was
warranted. He came to the conclusion, however, that the onus
of proof had shifted from the plaintiff to the defendant, and on
that basis found for the plaintiff (then also respondent).
But the true onus of proof, i.e. the onus of proof as fixed by
the pleadings, in the instant case by the pleadings as restated in
the Native Commissioner’s Court, can never shift and was here
clearly on the plaintiff, see Pillay v. Krishna and Another, 1946.
A.D. 946, at pages 951 to 954, so that the Native Commissioner
erred in holding that the onus had shifted from the plaintiff to the
defendant.
Proceeding to a consideration of the evidence, it was contended
in this Court on behalf of the respondent that, in the light of the
plaintiff’s explanation that he had merely sat and listened and
not taken any part in the family meeting at which he alleged it
was agreed that the defendant would repay the dowry advanced
for his wife by the plaintiff’s late father, the Native Commissioner
wrongly held that it was contrary to custom for him to have
attended that meeting in view of his youth. It was further con-
tended in this Court on behalf of the respondent that the Native
Commissioner also erred in holding that it was unusual for a
relation on the maternal side, such as the plaintiff’s witness, Pala-
zeleni Tsota, to have attended the family meeting in question.
Both these contentions are sound but it seems to me that, allowing
for the erroneous findings by the Native Commissioner in these
respects, the evidence still does not warrant a finding for either
side. That this is the position will be apparent from what
follows. According to the defendant’s witness, November Sigide,
Palazeleni went to Cape Town with him before the defendant con-
tracted his customary union and they remained working there for
a considerable time. The defendant testified that Palazeleni was
not at home when he (defendant) contracted his customary union.
Palazeleni denied that he had ever been to Cape Town. The
Native Commissioner does not comment adversely on November
as a witness. It is true that the defendant did not call Novem-
ber at the hearing at the Chief’s Court, but then if, as alleged by
the defendant. Palazeleni was not at home at the time of his
(defendant’s) customary union, the latter would not have expected
him to give evidence at the Chief’s Court, and would, therefore,
33
not have arranged for November to be there. Admittedly, the
Chief states in h s reasons for judgment that the de.endant was
asked whether he had any witnesses and that he replied in the
negative. But, according to the defendant, he was ashed whether
he had any witnesses present at the trial. Adm.ttedly, also, there
are incons stencies in November’s evidence, but then the same
appl es to Pa'.aze'.eni’s evidence. Consequently it is not possible
to decide whether Palazeleni or November is telling the truth.
Th s leaves only the plaintiff s test mony that the dowry cattle
concerned were advanced by his late lather and were repayable
by the defendant against the latter’s testimony that stock belonging
to his house and bearing hs ea:mark were used to pay that
dowry. The adverse inference drawn by the Native Comm ssioner
against the defendant from his allegation that the plaintiff’s late
father had donated three of the do vry cattle paid for his (defen-
dant's) sister and due to the plaintiff’s late father to repay an
advance of dowry for the defendant s mother, viz., that such a
gift is not customary is of little moment as it emerges from the
evidence for the plaintiff that the defendant contracted h s cus-
tomary union prior to that entered into by h s sister, so that, as
is consistent with the defendant's testimony, the three cattle could
not have formed part of the dowry payment for the defendant’s
wife and, therefore, have no direct bear.ng on the issue in the
instant case.
The plaintiff delayed six years in bringing the instant action.
His only explanation for this long delay was that he was in no
hurry, which is hardly a convincing reason. As pointed out in
Ngombane v. Mankayi, 1956, N.A.C. 115 (S', at page 118, long
delay by a person in bring ng an action without a convincing
explanation therefor, is a factor militat ng against the success of
his case. In these circumstances there is no justificat on for
holding that either party established his case and as, for the
reasons g'ven above, the onus of proof on the pleadings rested
on the plaintiff, the correct judgment is one of absolution from
the instance.
The appeal to this Court should accordingly be allowed, with
costs, and the judgment of the Court a quo altered to read as
follows : —
“The appeal is allowed, with costs, and the judgment of
the Chief’s Court is altered to one of absolution from the
instance, with costs.”
For Appellant: H. White of Umtata.
For Respondent: G. Hughes of Umtata.
SOUTHERN NATIVE APPEAL COURT.
NGCOBONDWANA v. GAGELA.
N.A.C. CASE No. 52 of 1957.
Umtata: 21st February. 1958. Before Balk, President, Warner
and Bates, Members of the Court.
EVIDENCE.
Presumption of spinster’s virginity — Seduction — Onus of proof of
non-responsihility for pregnancy on seducer — Recruiter's records
hearsay — Labour “ passport " not a public document
4240182—2
34
NATIVE LAW AND CUSTOM.
Fine ” for seduction unaccompanied bv pregnancy in Tembu
custom — “ Ntlonze ” beast — An acknowledgment of liability for
" fine
Summary: Plaintiff sued defendant for three head of cattle or
their value, being the balance of damages of five head of
cattle for the seduction and pregnancy of the former’s
daughter for which he alleged the defendant was responsible.
Defendant denied the seduction and his responsibility for
the girl’s pegnancy and that he had ever admitted liability
therefor. The remaining tacts are immaterial to this report.
Held: That, as a spinster is presumed to be a virgin, a finding
that intercourse between the defendant and the spinster has
taken place carries with it liability by the fo'mer for damages
for seduction, unless that presumption is rebutted.
Held further: That under Tembu law and custom a “fine” of
one head of cattle is payable for seduction unaccompanied
oy pregnancy.
Held further: That the test'mony of an official of a Native
labour recruiting corporation that, according to his records,
a person went forward under contract to a mine, is obviously
hearsay and therefore inadmissible in proof of the alleged
fact.
Held further: That a labour “ passport ” is not a public docu-
ment as it is clear from the endorsement printed thereon in
red letters that it need only be produced to an authorised
officer and the public had no right of access thereto, and it
is, therefore, inadmissible in evidence as such.
Cases referred to:
Sgatya & Ano. v. Mbane, 1956. N.A.C. 48.
Ngquzu v. Sixishe & Ano., 4 N.A.C. 324.
Molesana v. Leqela, 2 N.A.C. 189.
Eacela v. Mbontsi, 1956, N.A.C. 61.
R. v. Amod & Co. (Pty.), Ltd. & Ano., 1947 (3) S.A. 32.
Boon v. Vaughan & Co., Ltd., 1919, T.P.D. 77.
Ntloko v. Tseku, 3 N.A.C. 257.
Manakaza v. Mhaga, 1 N.A.C. (S.D.) 213.
Hassim v. Naik, 1952 (3) S.A. 331.
Appeal from the Court of the Native Commissioner, Cala.
Balk (President): —
The plaintiff (present appellant) sued the defendant (now
respondent) in a Native Commiss. oner’s Court for three head of
cattle or their value, £30, in respect of the balance of damages
due for his having seduced and rendered his daughter, Kulukazi,
pregnant.
In the particulars of his claim the plaint ff averred, inter alia,
that the total damages suffered by him amounted to five head
of cattle or their value, £50, but that upon the customary report
being made, the defendant had, through his agent, Edward Gagela,
admitted liability and paid two head of cattle on account of the
damages, leaving a balance of three head which he had failed
to pay notw.thstanding demand.
The defendant in his plea denied that he had seduced and
rendered Kulukazi pregnant, as also that he had admitted liability
therefor. In addition he denied that he had authorised anyone
to make any payment on account of the damages on his behalf
and counterclaimed for the two cattle or their value, £28.
35
The Native Commissioner entered judgment for the defendant
as prayed, with costs, on the claim in convention and for the
plaintiff in reconvention as prayed, with costs, on the counter-
claim.
The appeal is against the whole of the judgment and is brought
on the following grounds: —
“ 1. That the judgments in convention and re-convention are
against the weight of evidence.
2. That on the claim in convention the Court of first instance
ened in finding that the plaintiff failed to establish, on a
balance of probabihties. that the defendant seduced and
rendered pregnant plaintiff’s daughter.
3. That on the claim in re-convention the Court of first instance
erred in holding that the defendant had established on a
balance of probabil.ties that the two head of cattle had
been paid over to the plaint ff without his knowledge or
authority or without any admission to either Edward
Gagela or Fodi Gagela of his liability for the said seduc-
tion and pregnancy — and that defendant discharged the
heavy onus of proving that he was not and coud not have
been the cause of the pregnancy of the plaintiff’s said
daughter.
4. That the Court of first instance erred in fixing the value of
the two cattle at £28 in view of the accepted value of £10
per head in all seduction and pregnancy and dowry cases.”
I will refer to the plaintiff in convention as plaintiff throughout,
i.e. when dealing with both claim and counterclaim, and similarly
to the defendant in convention as defendant.
Mr. Muggleston, who appeared on behalf of the respondent in
this Court, stated that he had no grounds for attacking the
Native Commissioner’s finding that the defendant had sexual
intercourse With Kulukazi, that he, therefore, accepted that
finding and would, in contest ng the appeal, confine himself to
the question of damages based on the pregnancy. In the circum-
stances it is unnecessary for this Court to consider the correctness
of that finding. Here it should be mentioned that the Native
Comm ssioner’s finding as regards the pregnancy is that the defen-
dant was not responsible therefor.
The Native Commissioner’s finding of intercourse carries cer-
tain consequences in its wake. Firstly, the defendant is liable
for damages for seduction in that —
(a) Kulukazi, being a spinster, as is implicit in the evidence,
is presumed to have been a virgin at the time when the
defendant had intercourse with her, see Sgatya & Another
v. Mbane, 1956, N.A.C. 48 (S), at pages 51 and 52;
( b ) th's presumption was not in any way challenged by the
defendant; and
(c) under Tembu law and custom, which applies in the instant
case, a “fine” of one beast is payable for seduction un-
• accompanied by pregnancy, see Ngauzu v. Six she and
Another, 4 N.A.C. 324 and Molisana v. Leqela, 2 N.A.C.
189, at page 190.
Secondly, in order to escape liability for damages for Kulu-
kazi’s pregnancy, the defendant had to prove that he d d not
render her pregnant, un'ess she w^s found to be unworthy of
credence, see Bacela v. Mbontsi, 1956, N.A.C. 61 (S) at page 68.
Accepting the defendant’s testimony that he left the Xalanga
District on the 1st February, 1956, to take up employment in the
Orange Free State and that he remained there until December,
1956, as this aspect does not appear to have been challenged in
cross examination, it is still not impossible that the defendant
rendered Kulukazi pregnant in January, 1956, regard being had
36
to the date of the birth of her child and the possible period of
gestation. Moreover, the defendant's false denials in connection
w.th the letter (Exhibit “ C ”) which are referred to by the Native
Commissioner in his reasons for judgment, detract from his credi-
bility. However, the Native Comm ssioner found that Kulukazi
was unworthy of credence and this finding cannot be gainsaid in
view of the blatant inconsistencies in her testimony. In the circum-
stances the evidence does not warrant a find.ng for either side.
That be ng so. and as the letter (Exhibt “ C ”) suggests that the
defendant wrote an earlier letter in connection with Kulukazi’s
accusation that he was respons.ble for her pregnancy, which was
not p-oduced and may be probative of the plaintiff’s allegation
that the derendant therein adm tted resoonsibility for Kulukazi’s
condition, the correct judgment on the claim n convention is one
of absolution from the instance in so far as damages for preg-
nancy are concerned; and, for the reasons given above, for one
beast or its value, £10, in respect of damages for the seduction-
tion.
Turning to the counterclaim, the Native Commissioner’s finding
that, prior to the birth of Kulukazi’s child, the defendant had
admitted liability by letter for her pregnancy, and had authorised
the payment of two head of cattle on account of the customary
“ fine ” of five head for her seduction and pregnancy is net sup-
ported by the evidence as that letter was not produced nor is
there any proof that proper search was made therefor and that it
could not be found, or that it was otherw se unobtainable so as
to allow of secondary evidence of its contents, see Rex v. Amod
& Co. (Pty.), Ltd. & Another, 1947 (3' S.A. 32 (A.D.), at page 40,
and Boon v. Vaughan & Co., Ltd., 1919, T.P.D. 77. It is as well
to add that the only evidence of the contents of the earlier letter
is hearsay and, therefore, in any event inadmissible. It is true that
the ev dence of the defendant’s witness. Ford Gagela, anent the
payment of the two head of cattle is so improbable on the face
of it, bearing custom in mind, as to be unworthy of credence; for
Ford would have the Court bel eve that he and the late Edward
Gagela paid the two cattle to the plaintiff to stop him from suing
the defendant for damages for Kulukazi’s seduction and pregnancy
even though thev did not know whether or not the defendant
would deny liability therefor; and thereafter Ford stated that one
of the catt’e paid was intended as an nt!on~e beast, i.e, as an
acknowledgment that the defendant owed the “fine” of five head
of cattle, see Ntlcko v. Tseku, 3 N.A.C. 257. at page 258, and
thus cont'-ad cted himself. But these unsatisfactory features in
Ford’s evidence, whilst justifying its reiection, are not in them-
selves probative of the authnr sation by the defendant of the
pavment of the two cattle. That being so, and as the defendant’s
evidence that the two cattle are his poperty and are worth £28
has not been controverted, the judgment of the Court a qua for
defendant as prayed, with costs although founded on an applica-
tion of wrong principles, is correct.
Several further points call for mention.
Firstly, the Native Comm:ss:oner followed the dictum in Mana-
kaza v. Mhaga, 1 N.A.C. (S D.) 213, as regards the incidence of
the onus of proof, overlooking the fact that that dictum was
overruled in Bacela’s case (supra).
Secondly the testimony of the defendant’s witness, A. J. Prin-
gle. the official in charge of the Native Recruiting Corporation at
Cala, that, according to his records, the defendant went forward
under contract to the Western Holding Mines in the Orange Free
State on the 1st February, 1956 is obviously hearsay as it is
manifest from his ev:d°nce that he d:d not spe the defendant
leave for the mines on that date and that in testifying thereto he
relied solely on his records compiled fr-m reports of others. It
follows that his testimony was inadmissible and that the Native
Commissioner misdirected himself in holding that it was probative
37
of the derendant’s having left for the mines on the 1st February,
1956. Sim.larly, the Native Commissioner was wrong in holding
that the passport produced by the defendant (Exhibit “ D ”) was
probative of the defendant’s having commenced work on the
mines in February, 1956, in that it is clear from the endo sement
printed thereon in red letters that it need only be produced to an
authorised officer and that the public, therefore, have no right of
access thereto, with the result that it is not a public document and
is inadmissible in evidence see Hass:m v. Naik, 1952 (3) 55. A. 331
(A.D.), at page 339. The endorsements on the passport (Exhibit
“ D ”) relat ve to the defendant’s having been employed on the
mines are also inadmissble in the absence of proof that the per-
son by whom they were made had an express authority, judicial
or statutory, to effect them, see Hassim’s case (supra) at pages
339 and 340.
In the result the appeal falls to be allowed, in part, with costs
and the judgment of the Court a quo altered to read as follows: —
“(1) On the claim in convention: For plaintiff in convention for
one beast or its value, £10, as damages for seluction.
Absolution from the instance as regards the damages for
pregnancy. Costs are awarded to the plaintiff.
(2) On the counterclaim: For plaintiff in reconvention as
prayed, w.th costs.”
For appellant: G. Hughes of Umtata.
For Respondent: K. Muggleston of Umtata.
SOUTHERN NATIVE APPEAL COURT.
WILLIE v. MnODA.
N.A.C. CASE No. 53 of 1957.
Umtata: 21st February, 1958. Before Balk, President, Warner
and King, Members of the Court.
PRACTICE AND PROCEDURE.
Norn? ot appeal — Security for respondent’ s costs on appeal —
Waiver.
Summary: The material facts are that, when appellant lodged
his not ce of appeal with the Clerk of the Court, within the
time prescribed by the Rules, he did not give security for
the payment of respondent s costs as required by Rule 5 (3)
of the Rules for the Native Appeal Courts. Instead, respon-
dent’s attorneys consented to the waiving of the provis ons
of the Rule mentioned.
Held: That, as the requirement of security is designed for the
protection of the opposite party, it may be waived by such
party should he be so inclined.
Cases referred to:
Me ring v. Uys, 1924 O.P.D. 250.
Legislation referred to:
Rules 4 and 5, Government Notice No. 2887 of 1951.
38
Appeal from the Court of the Native Commissioner, Maclear.
Warner, H. W. (Permanent Member): —
At the hearing of this appeal the question arose, at the outset,
whether the noting of the appeal was in order. The notice of
appeal was delivered with'n the period prescribed in Rule 4 of
the Ru’es promulgated under Government Notice No. 2387 of
1951, but security for the payment of the costs of the other party
was not given within this period as required by sub-section (3) of
Rule 5. Respondent's attorneys, however, with n this per od. con-
sented to the waiving of the p ovisions of the last-mentioned
Rule. Consideration was given, therefore, to the question whether
this consent satisfied the requirements of the Rule.
Rule 47 (4) of the Rules of Magistrates’ Courts contains a
similar provision in regard to the giving of security and in regard
thereto it was held in the case of Mei'ing v. Uys, 1924, O.P.D.
250, that the requirement of security is, of course, designed for
the protection of the opposte party and may, therefore, be
waived by such party should he be so inclined. It is held that
this ruling applies also to appeals from Native Commissioner’s
Courts so that the noting of the appeal in this case was in order.
(The Court then went on to deal with the appeal on its merits.)
For Appellant: G. Hughes.
For Respondent: K. Muggleston.
SOUTHERN NATIVE APPEAL COURT.
KOHLAXALA v. KOHLAKALA.
N.A.C. CASE No. 55 of 1957.
Umtata: 20th February, 1958. Before Balk, President, Warner
and King, Members of the Court.
PRACTICE AND PROCEDURE.
Burden of proof on pleadings — Absolution from instance.
Summary: Plaintiff sued defendant for the return of certain
five head of cattle averring that they had been nqomacd by
him to the latter. In the del endant s plea the alleged nqoma
transaction was denied, it was claimed that one o; the cattle
had been acquired from plaintiff by defendant by way of an
exchange, and that the rest were progeny of that animal.
After hear.ng evidence the Ass.stant Native Comm ssioner
granted absolution from the instance; and plaintiff appealed,
inter alia, on the ground that the Assistant Native Commis-
s oner erred in granting absolut.on from the instance in that
de endant failed to discharge the onus resting upon him,
entitling plaintiff to judgment in his favour.
Held: That the onus on the pleadings of proving the alleged
nqoma transaction rested on pla.ntiff, and that of establishing
the alleged exchange on the de’ endant. so that there were
two distinct burdens of proof wh ch had nothing to do with
each other. It is only where there is a single bu den of
proof on the pleadings in respect of any one claim and such
burden rests on the de endant, that there is no room for a
decree of absolution from the instance.
39
Cases referred to:
Pillay v. Krishna & Another, 1946, A.D. 946.
Arter v. Burt, 1922, A.D. 303.
Appeal from the Court of the Native Commissioner, Engcobo.
Balk (President): —
This is an appeal from the judgment of a Native Commis-
sioner’s Court decreeing absolution fiom the instance, with costs,
after the close by both the parties of their cases, in an action in
which the plaint If (present appellant) sued the defendant (now
respondent) for the return of certain five head of cattle, averring
that they had been naomaed to the latter by him.
In his plea the defendant denied the alleged nqoma transaction
and stated that he had acqui:ed the red cow in dispute from the
plaintiff in exchange for a horse and that the rema'nlng four
head were the progeny of the red cow. born after its acquisiion
by him.
The appeal is brought on the following grounds: —
“ 1. That the Assistant Native Commisoner erred in granting
absolution from the instance, in that defendant failed to
discharge the cnus resting upon him, ent.tling plaint ff to
a judgment in his favour.
2. That upon all the evidence there is a balance of probabilities
in favour of the plaintiff entitling him to a judgment in
his favour.”
The onus on the pleadings of proving the alleged nqoma trans-
action rested on the plaintiff and that of establ shing the alleged
exchange on the defendant, so that there were two d stinct bur-
dens of proof which had nothing to do with each other, see
Pillay v. Krishna and Another, 1946, A.D. 946, at pages 951 to
954. That being so, and as it is only where there is a single bur-
den of proof on the pleadings in respect of any one claim and
such burden rests on the defendant, that there is no room for
absolution from the instance, see Arter v. Burt, 1922 A.D. 303,
at pages 305 and 306, the first ground of appeal fails.
Turning to the remaining g ound of appeal, there are blatant
inconsistencies in the plaintiff’s evidence and that of his witness,
Sivela, as well as material discrepancies between their ev'dence,
as pointed out by the Assistant Native Commiss oner in his
able reasons for judgment. As also pointed out by the Ass'stant
Native Commiss:oner and as is apparent from the record, the
plaintiff's remaining witness is hazy in his recollections so that
if is unsafe to rely on him. The defence witnesses do not assist
the plantiff in establishing his case; nor do the two witnesses
called by the Assistant Native Commissioner in view of the dis-
crepancies between their evidence and the improbabilities therein.
In the circumstances the Ass:stant Nat:ve Commissioner cannot
be said to be wrong in findmg that plaintiff had not established
his case and in absolving the defendant from the instance.
Accordingly the appeal falls to be dismissed, with costs.
For Appellant: H. White of Umtata.
For Respondent: G. M. M. Matanzima of Engcobo.
40
SOUTHERN NATIVE APPEAL COURT.
MAVELA AND ANOTHER v. NOMGWIQI.
N.A.C. CASE No. 58 of 1957.
Port St. Johns: 5th February, 1958. Before Balk, President,
Warner and Wakeford, Members of the Court.
PONDO CUSTOM.
Damages payable for seduction and plurics pregnancies — Un-
married females and widow’s living as dikazis.
PRACTICE AND PROCEDURE.
Defau't judgment against tort feasor — Not binding upon another
defendant disputing vicarious responsibility.
Summary: Plaintiff sued the first defendant for fifteen head of
cattle, or their value, as damages for causing the three preg-
nancies of the former’s daughter, and joined the second
defendant in his claim on the ground that he was liable for
the first defendant’s torts in that the latter was an inmate
of his kraal. Responsibility for the third pregnancy only
was admitted by the fi.st defendant and both denied in their
plea that the first defendant was an inmate of the second
defendant’s kraal.
Default judgment having been taken against both defen-
dants, and having been rescinded, the hear.ng of the action
commenced, in the absence of the first detendant against
whom a default judgment was again entered for fi.teen head
of cattle or their value. The Court found that the first and
third of the alleged pregnancies were attributable to the first
defendant and held the second defendant, as k-aalhead,
jointly and severally responsible with the first defendant for
the payment of ten head of cattle or their value.
Second defendant appealed on the ground, inter alia, that
the pla ntiff was in the c.rcumstances of this case not
entitled to the full damages of five head of cattle in respect
of each pregnancy. Plaintiff in a cross-appeal contended,
inter alia, that the judgment in favour of second defendant
in so far as the second pregnancy was concerned, was bad
in law and not in accordance w.th Pondo law and was illogi-
cal and inconsistent with the rest of the judgment of the
Court in that, when the Court accepted the fact that the first
defendant was an inmate of the second defendant’s kraal
when the second pregnancy occurred, the liability of the
second defendant for that pregnancy followed as a matter
of course, and by operation of law and custom. Fla ntiff
also claimed that the second defendant could not avail him-
self of any special defence that was not open to the first
defendant, once it was proved that the latter was an inmate
of his kraal when the torts were committed and that the first
de'endant was the tort feasor, and that the defence that the
second pragnancy was not reported could not absolve the
second defendant from kraalhead liability.
Held: After consultation of the Native Assessors: That the
“fine” claimable for causing the pregnancy of females who
have not contracted customary unions, as well as widows
who have returned to their fathers’ kraals, where they are
liv.ng as dikazis, is five head of cattle in respect of each
pregnancy, no matter how many.
41
Held further: That the default judgment against the first
defendant binds him only and is in no way binding on the
second defendant to whom it was open to contest the case
on all disputed issues raised by the pleadings (i.e. not only
the question whether the first defendant was an inmate of
the other’s kraal when he committed the alleged torts; but
also the question whether the first defendant in fact com-
mitted all the torts complained of by the plaintiff).
Cases referred to:
Mpeti v. Nkomanda, 2 N.A.C. 43.
Kolwa v. Moyeni, 2 N.A.C. 100.
Mcitwa v. Ndondo, 1944, N.A.C. (C. & O.) 96.
Appeal from the Court of the Native Commissioner, Libode.
Balk (President): —
The plaintiff sued the two defendants, jointly and severally,
in a Native Commissioner’s Court for fifteen head of cattle or
the.r value, £150, as damages for three pregnancies of his
daughter, Nomakamani, averr.ng, inter alia, in the particulars
of h s claim that the first defendant had rendered Nomakamani
pregnant on those three occasions and that the second defen-
dant was liable for the first defendant's torts in that the latter
was an inmate of the former's kraal.
In their plea the defendants admitted that the first defendant
had rendered Nomakamani pregnant on the third occasion, but
denied that he had done so on the other two occasions. They
also denied that the first defendant was an inmate of the second
defendant's kraal.
Judgment by default was entered against both defendants on
the 27th October, 1955. That judgment was rescinded on their
application and the hearing of the action commenced on the
1 8th September, 1956. The first defendant did not appear on
that day and, on an application by h s attorney for the post-
ponement of the case against him being refused by the Court,
the attorney withdrew therefrom and the case proceeded against
the second defendant only. On the application of the pla ntiff’s
attorney judgment by default was again entered against the first
defendant for fifteen head of cattle or their value. £120 less
£3 pa:d on account. At the resumed hearng of the case against
second defendant on the 29th October, 1957, he did not appear
and h s attorney applied for a postponement to enable the second
defendant to give ev'dence, his other witnesses having testified
at the previous hearings. Th's appl cation was refused and the
attorney thereupon closed his case. After addresses by the attor-
neys for both parties judgment was entered against second defen-
dant as follows: —
“That second defendant is found to be the k-aal head
and is held to be liable jointly and severally with first defen-
dant for the payment to plaintiff of 10 head of cattle or
their value £80 and costs be'ng damages in respect of the
first and third pregnancies less £3 paid on account.”
The appeal against that judgment is brought on the following
grounds: —
“ 1. That the judgment is against the weight of evidence and
probabilities of the case.
2. That the plaintiff in the circumstances of this case is not
entitled to the full damages of five head of cattle in
respect of each pregnancy.
3. That a postponement should have been allowed.”
42
Hem it may be mentioned that the identity of the appellant
or appellants is not specifically stated in the notice of appeal,
as should have been done, but it is implicit in the grounds of
appeal and was in fact confirmed by Mr. Attorney Birkett,
who aopeared in this Court on behalf of the appe lant, that
the appeal was brought by the second defendant only.
The plaintiff noted a cross-appeal on the following grounds
only against the part of the judgment assolving the second
derendant from liability for damages for the alleged second
pregnancy : —
“ 1. That the portion of the judgment appealed against the
weight of the evidence (sic), the facts proved and the
probabilities of the case.
2. That the judgment in favour of second defendant as speci-
fied above hereof is bad in law, and is not in accordance
with Pondo law and custom and is illogical and inconsis-
tent with the rest of the judgment of the Court in that the
Court having found proved that first derendant was an
inmate of the kraal of the second defendant at the time
when the first pregnancy as well as the thi'd pregnancy
occurred the Court was bound to accept, and did in fact
accept and find proved that first defendant was an inmate
of the kraal of the second defendant when the second
pregnancy occurred as well and so the liability of the
second defendant followed and followed (sic) as a matter
of course and by operation of law custom and vicariously
from that of No. 1 for the second pregnancy as well.
3. That No. 2 defendant could not avail himself of any special
defence that was not open to No. 1 once it was proved
that No. 1 was an inmate of his kraal when the torts were
comm tted and that No. 1 was the tortfeasor, and the
fact that the Second pregnancy was not reported and the
“ stomach never taken ” was not special defence for No.
2, which could absolve him from kraal liability.
4. That this position of the judgment was inconsistent was
(sic) the previous judgment given by the same Court in
the same case on the 27th October, 1955, by default judg-
ment against both defendants jointly and severally for the
full amount of plaint. ff’s claim, which judgment was sub-
sequently rescinded.”
At the inception of his argument on behalf of the appellant,
Mr. Birkett abandoned the third ground of appeal and properly
so, as there is obviously no substance therein in that it is abun-
dantly clear from the record that there was no excuse for the
second defendant’s fa lure to attend Court on the 29th October,
1957. when his attorney applied unsuccessfully for the postpone-
ment in question to enable the second defendant to give evidence.
In his argument Mr. Birkett attacked the Native Comrrrssioner’s
finding against second defendant in regard to the first pregnancy
as also h s finding that the first defendant was an inmate of the
second defendant’s kraal at the material times. The Native Com-
missioner gives cogent reasons for those findings. The first defen-
dant’s admission in the course of his evidence for the second
defendant that he had commenced to have sexual intercourse with
Nomakamani shortly after she returned to her father’s kraal,
coup'ed with the improbabiities and discrepancies in the evidence
for the second defendant and the unsatisfactory demeanour of
the defence witnesses mentioned by the Native Commiss oner, on
the one hand, and the obviously more reliable testimony for
the plaintiff on the other, justify the Native Comm'ssioner’s
findings in question. It should be added that in arriving at this
conc’us on due consideration was given to the arguments advanced
by Mr. Birkett. The first ground of appeal, therefore, fails.
43
Comrng to the second ground of appeal, the previous decisions
regarding the scale of “fines” in Pondo law and custom applic-
able to cases of the nature here in question, are not consistent,
see, for example, Mpeti v. Nkomanda, 2 N.A.C. 43, where it is
stated that the “ fine ” for the pregnancy of a dikazi is five head
of cattle, and Kolwa v. Moyeni, 2 N.A.C. 100 where the “fine”
is stated to be from three to five head of cattle, in accordance
with the discretion of the Court. For this reason the Pondo
assessors were consulted. Their reply, with which I am in agree-
ment, as it conforms to the custom as known to this Court, is
appended. It will be seen from their reply that the “fine”
claimable is fixed at five head of catt e in respect of each preg-
nancy, no matter how many, and that this scale obtains in respect
of females who have not contracted customary unions as well as
widows who have returned to their fathers’ kraals and are liv ng
there as dikazis, as is the position in the instant case. The latter
aspect is covered by the judgment in Mcitwa v. Ndondo, 1944,
N.A.C. (C. & O.) 96. The second ground of appeal, therefore,
also fails.
Turn ng to the cross-appeal, the admitted failure on the part
of the plaintiff to take the “ stomach ” to the defendants in the
case of the second pregnancy supports the evidence for the
second defendant that the first defendant discarded the plaintiffs
daughter for a year and was not responsib'e for her second preg-
nancy, so that the Native Commissioner’s finding against the
plaint ff on that score cannot be said to be wrong, and the first
ground of the cross-appeal, therefore, fails.
In his argument advancing the second and third grounds of
the cross-appeal, Mr. Vabaza contended that the existing default
judgment against the first defendant automatically bound the
second defendant in regard to the number of pregnancies for
which the latter was liable as kraal head. But the default judg-
ment given against the first defendant obviously only binds him
and is in no way binding on the second defendant to whom it
was open to contest the case on all the disputed issues raised by
the p'eadings which include not only the question whether the
first defendant was an inmate of the second defendant’s kraal
when he (first defendant) committed the alleged torts, but alro the
question whether the first defendant in fact comm tted any of
these torts, i.e„ whether he was responsible for the first and
second pregnancies as alleged by the plaintiff in his summons and
denied by the defendants in their plea.
As regards the remaining ground of the cross-appeal, the
resc nded default judgment given against the second defendant
on the 27th October, 1955, obviously has no bearing in the
direction adumbrated on the subsequent judgment given against
him.
It follows that the second, third and fourth grounds of the
cross-appeal also fail.
In the result the appeal and the cross-appeal fall to be dis-
missed, with costs.
STATEMENT BY PONDO ASSESSORS.
Assessors in Attendance:
1. Matapela Sontsele from Bizana district, Eastern Pondoland.
2. Lumayi Langa from Flagstaff district. Eastern Pondoland.
3. Act ng Chief Mdabuka Cetywayo from Lusikisi district,
Eastern Pondoland.
4. Johnson Hlwatika from Ngqeleni district, Western Pondo-
land.
44
5. Lanvazima Mvinjelwa from Port St. Johns district. Western
Pondoland.
Question by President:
A widow returns permanently to her father’s kraal where she is
rendered pregnant three times by the same man. What “fine” is
claimable by the father under Pondo law and custom in such a
case?
Reply by Acting Chief Mdabuka Cetywayo:
It is immaterial whether it is a girl who has never entered into
a customary union or a w dow who has permanently returned to
her father’s kraal and become a dikazi. The “ fine ” in every
case is fixed at five head of cattle in respect of each pregnancy
no matter how many.
All the other Assessors agree.
Question by President:
Does the custom in Western Pondoland differ from that in
Eastern Pondoland?
Reply by Acting Chief Mdabuka Cetywayo:
There is no difference. We Pondos have one custom.
All the other Assessors agree.
For Appellant: H. H. Birkett, Port St. Johns.
For Respondent: J. G. S. Vabaza, Libode.
SOUTHERN NATIVE APPEAL COURT.
MNGXUNYA v. TYIKANA.
N.A.C. CASE No. 9 of 1958.
King William’s Town: 15th March, 1958. Before Balk, Presi-
dent, Warner and Pike, Members of the Court.
PRACTICE AND PROCEDURE.
Appeal — Condonation of late noting — Interpleader — Onus where
property attached in claimant's possession — “ Interpleader dis-
missed ” not a competent judgment.
Summary: Cattle in claimant’s ostensible possess on were
attached in execution of a warrant, issued at the judgment
creditor’s instance, as being the property of the judgment
debtor. An interpleader action was commenced at claimant’s
instance, and after hearing ev dence the Native Commis-
sioner entered a judgment which reads: “Interpleader dis-
missed with costs ”, which, in his v.ew, as explained in his
reasons for judgment, resulted in the restoration of the posi-
tion which obtained prior to the inst tution of the m'er-
p.eader proceedings. In delivering judgment the Native
Commissioner also indicated that he knew the Nat.ve mind
and, according to the notice of appeal, continued that he
45
was satisfied that the cattle belonged to the whole family and
the judgment debtor, as senior member of that family, was
owner thereof. In his reasons for judgment he exp ained
that when he used the express on “I know the Native mind”,
he merely did so to indicate that in the case of Natives it
was very difficult to tell who the lawful owner was of stock
found in possession of an individual and that, more often
than not, the cattle belonged to the whole family.
In h's reasons for judgment he stated that the onus of
proving ownership of the cattle rested on the plaintiff.
Appeal having been noted late and there being no applica-
tion before the Court for condonation ot late noting, the case
was struck off the roll, w th costs, in October, 1957, at
respondent’s request. He was paid his costs from the deposit
in possession of the Clerk of the Court. Later application
was made for the re-instatement of the appeal on the roll
and for condonation of late noting. On 18th February, 1958,
£7. 10s. was deposited with the Clerk of the Court as fresh
security for respondent’s costs; but no mention was made
of th s fact in the affidavit in support of the aophcation for
condonation. Respondent’s attorney strenuously objected to
the application being granted, although no formal objection
was lodged as provided for in Rule 14 of the Rules for
Native Appeal Courts.
Held: That as fresh security for respondent’s costs of appeal
was proved to have been deposited, no prejudice to the
respondent had resulted from applicant’s failure to allege
such deposit.
Held further: That, as it could not be said to be clear that the
applicant had no prospect of success on appeal, the^e was
no justification for refusing the application on that ground.
Held further (in dealing with the merits of the appeal) That
ostensible possession by the claimant of the property
attached raised a presumption that he was the owner there-
of, and that the onus of rebutting that presumption of
ownership rested on the judgment creditor.
Held further: That the onus of rebutting such a presumption
of ownership is discharged by the execution creditor if he
proves that the claimant was not in fact the owner of the
goods attached, without further proving that the judgment
debtor was their owner.
Held further: That the dismissal of a claim, which is the
equivalent of an absolution judgment, is not competent on
the merits in interpleader proceedings of the nature in ques-
tion here.
Cases referred to:
de Villiers v. de Villiers, 1947 (1) S.A. 635.
Rose and Another v. Alpha Secretaries, Limited, 1947 (4)
S.A. 511.
Gleneagles Farm Dairy v. Schombee, 1949 (1) S.A. 830.
Gobo v. Davies, 1915 E.D.L.D. 136.
Memani v. Worasi, 1955 N.A.C. 115.
Hulumbe v. Jussob, 1927 T.P.D. 1008.
Becker v. Wertheim, Becker and Leveson, 41 P.H.F. 34.
Legislation referred to:
Rule 14, Government Notice No. 2887 of 1951.
Appeal from the Court of the Native Commissioner, Queens-
town.
46
Balk (President): —
The first matter to be considered in this case was an applica-
tion for re-instatement of the appeal on the roll, condonation of
its late noting and the amendment of the notice of appeal by
the addition of a further ground.
The application for condonat'on was strenously opposed by
Mr. Heathcote, who appeared on behalf of the respondent. In
the first place he submitted that the affidavit filed in support of
the app ication did not disclose sufficient cause to justify condona-
tion. But viewed in its p~oper perspective, there can be no
doubt that the supporting affidavit shows that the applicant took
the necessary steps to have the appeal noted and prosecuted
timeously and that it was entirely due to the negligence of a
professional assistant employed at the time by the applicant’s
attorney that this was not done. It was also clear that the
blame lay w th the professional assistant for the failure to apply
at the previous session of this Court for condonation of the late
noting of the appeal with the result that it was then struck off the
roll, with costs. Mr. Heathcote took the further point that the
supporting affidavit did not indicate that fresh secunty for the
respondent’s costs of appeal had been lodged to replace the
initial security which had been absorbed by the taxed costs
awarded to the respondent when the appeal was struck off the
roll. But Mr. Barnes, who appeared for the applicant, produced
documentary proof that fresh security had actually been lodged
on the 18th February, 1958; and, apart from the fact that objec-
tion was not taken in the manner prov ded by Rule 14 of the
Rules of this Court on account of the failure to mention in the
supporting affidavit that fresh security had been lodged, it seemed
clear that no prejudice to the respondent had resulted therefrom.
Mr. Heathcote also contended that the applicant’s prospects of
success on appeal were slender in view of the spec fic finding on
credibility by the Native Commissioner’s Court a quo. But it
was apparent from the record that that Court had misdirected
itself as regards the incidence of the onus of proof so that it
could not be said to be clear from its judgment that the appli-
cant had no prospect of success on appeal and there was, there-
fore, no justification for refusing the application on that ground,
see de Villiers v. de ViTers, 1947 (1) S A. 635 (A.D.), at page
637. Applying the principles enunciated in Rose and Another v.
Alpha Secretaries, Limited, 1957 (4) S.A. 511 (A.D.) to the cir-
cumstances of the instant case, this Court came to the conclus on
that the applicant had shown good cause and accordingly granted
the whole application, but ordered the applicant to pay the costs
thereof.
Turning to the appeal, the Court a quo dismissed, with costs,
a claim in interpleader proceed ngs resulting from the attachment
by the Messenger of that Court of certain six head of cattle
under a warrant of execution in a civil action.
The appeal is brought by the claimant on the following
grounds, which include the additional ground approved of by
this Court on application as indicated above: —
“ 1. In delivering verbal judgment the Native Commissioner said,
inter alia, that knowing the Native mind he was satisfied
that the cattle belonged to the whole family and he judg-
ment debtor as senior member of that family was owner
thereof. It is submitted that the Native Commissioner
erred in taking judicial cognisance of the Native mind,
part cularly as direct evidence was given by claimant, and
Judgment Debtor which was corroborated by Dr. J. v. A.
Steytler to the effect that the cattle were possessed and
owned by Claimant.
47
2. Claimant proved, by means of bis own evidence corroborated
by that of judgment Debtor and Dr. J. v. A. Steytler, that
he had full possession and ownership of the cattle at the
time of the attachment and this shifted the onus on Judg-
ment Creditor to disprove such title to the cattle which
sa d onus of proof Judgment Creditor failed to discharge
for the following reasons: —
(o) The only witness for Judgment Creditor was the Mes-
senger of Court who carried out the attachment.
(b) The evidence of the said Messenger of Court is largely
hearsay.
(c) The said Messenger’s evidence as to ownership of the
cattle is unreliable in as much as he admits that he
‘decided on information received’, that the cattle
belonged to Judgment Debtor, and that he (the Mes-
senger) also enquired from the Native gardener and
Mr. Promitz.
(d) Claimant’s sister whom the said Messenger of Court
alleges to have said that the cattle belonged to her
father was not called as a witness to corroborate the
Messenger’s evidence although she was available.
3. The Native Commissioner erred .n law in finding that the
evidence for Judgment Creditor was sufficient to disciose
that the Judgment Debtor was possessor and owner of the
cattle.
4. The judgment is against the weight of evidence as well as
against the probabilit.es thereof.
5. It is submitted that the Native Commissioner erred in giving
his judgment of which the record reads “ Interp!eader d s-
missed with costs ” and that in giving judgment the Native
Commissioner should have declared the property either
executable or not executabie as the case may be.”
The Native Commiss'oner a quo found that the cattle were
in the ostensible possession of the claimant when they were
attached by the Messenger of the Court and rightly so, for it
emerges from Dr. Steytlers uncontroverted testimony that, whilst
he permitted both the judgment debtor and the claimant to reside
on h.s farm on which the cattle were runn ng at the time of their
attachment, it was not to the judgment debtor but to the claimant
that Dr. Steytler gave the right to run the cattle on the farm,
so that the cattle must be taken to have been in the claimant’s
ostensible possession when they were attached. The Native Com-
missioner, however, states in his reasons for judgment that the
onus to prove ownership of the cattle rested on the cla mant.
But in this conclusion he is wrong for the ostensible posses ion
of the cattle by the claimant raised a presumption that he was
their owner, see Gleneagles Farm Dairy v. Schombce. 1949 (1)
S.A. 830 (A.D.), at page 838, so that the onus of proof, i e., the
onus of rebutt ng the presumption of ownership arising from
the claimant’s possession of the cattle, rested on the judgment
creditor, see Gobo v. Davies, 1915 E.D.L.D. 136, at page 140
and Memani v. Worasi, 1955 N.A.C. 115 (S), at page 116. Here
it should be mentioned that the onus of rebutting such presump-
tion is discharged by the execution cred tor if he proves that the
claimant was not in fact the owner of the goods attached without
further proving that the judgment debtor was their owner, see
Hulumbe v. Jussob, 1927 T.P.D. 1008. Although the Native Com-
missioner states that the onus of proof rested on the claimant, it
is apparent from his reasons for judgment that his ultimate
approach was correct for he quotes the relevant passage anent
the presumption from page 838 of the report of the judgment in
Gleneagles’ case (supra) and then goes on to show how that
presumption was rebutted in the instant case.
48
Proceeding to a consideration of the evidence on the basis that
the onus ot proof rested on the judgment creditor, the claimant
himself gave evidence and called Dr. Steytler and the judgment
debtor, wh 1st the Messenger of the Court was the only Witness
for the judgment creditor. It is manifest from Dr. Steytler’s
testimony that he did not of his own knowledge know that the
cattle were the claimant's property and, to my mind, the cogent
reasons given by the Native Commissioner for accepting the
Messenger’s evidence and rejecting that of the claimant and the
judgment debtor, cannot be ga.nsaid. From the Messenger’s
evidence it is clear that at the time of the attachment of the
cattle, the claimant’s sister stated n the presence of the Messenger
and the claimant that the cattle belonged to her father, the
judgment debtor, and the claimant did not deny her statement
at the time, nor did he then claim the cattle as his property.
It is true that, as pointed out in the argument on behalf of the
appellant, it does not appear to have been put to the claimant
in cross-evamination that his sister made that statement. But
this omission appears to me to be of little moment in view
of the c.aimant’s reply under cross-examination that he had in
fact claimed that the cattle were his property when they were
attached. To my mind it is hardly conceivable that, had the
cattle in fact belonged to the claimant, he would not have claimed
them when they were attached, particularly when his sister men-
tioned that the cattle belonged to their father, the judgement
debtor. Her statement is, of course, not admissible as probative
of the truth thereof as she was not called, but only as indicative
of the claimant’s reaction thereto. In the circumstances there
can, in my view, be no doubt that the judgment creditor rebutted
the presumption of ownership of the cattle in the claimant arising
from their being in his possession on attachment and that the
judgment creditor, therefore, discharged the onus of proof resting
on him.
As regards the first ground of appeal, the Native Commissioner
states in his reasons for judgment that the claimant’s attorney
misunderstood his use of the phrase “ I know the Native mind ”
in his verbal judgment and that he did not take cognisance
thereof to find that the cattle belonged to the whole family.
The Native Commissioner goes on to explain that he merely used
the expression to indicate that in the case of Natives it is
very difficult to tell who the lawful owner is of stock found
in possession of any particular individual, and that more often
than not it will be found that the cattle belong to the whole
family. Whilst, as submitted by Mr. Barnes on behalf of the
appellant, this is a general sation which ought not to have been
imported by the Native Commissioner, th s aspect cannot, how-
ever, be said to affect the issue since, for the reasons given above,
it is abundantly clear that the case turns on the Messenger’s
testimony.
The same applies to the Native Commissioner’s conclusion that
in any event the judgment debtor was the owner of the cattle
as he was the kraalhead, a premise, which, as pointed out by
Mr. Barnes, finds no support in the evidence.
Dealing with paragraph (d) of the second ground of appeal,
it seems to me that in the circumstances of this case, there is
no justification for drawing an inference more adverse to the
judgment creditor than to the claimant from the failure to call
the latter’s sister as a witness, see Gleneagles’ case (supra),
page 840.
Turning to the fifth ground of appeal, the Native Commissioner
states in "his reasons for judgment that in his view the dism'ssal
of the interpleader claim resulted in the restoration of the position
which obtained prior to the institution of the interpleader proceed-
ings. But this view is not correct in that the dismissal of a claim
is the equivalent of an absolution judgment, see Becker v.
Wertheim, Becker and Leveson, 41 P.H., F. 34 (A.D.), and such
49
a judgment is not competent on the merits in interpleader proceed
;ings of the nature in question, as the issue to be decided is
whether or not the property attached is executable and an absolu-
tion judgment, not being final, leaves this issue in doubt, see
Gobo’s case ( supra ), at page 138. The Native Commissioner's
judgment accordingly falls to be corrected in this respect since,
as is clear from what has been stated above, the judgment creditor
discharged the onus of proof resting on him. This finding, i.e.,
that the judgment creditor discharged that onus, also disposes
of the remaining grounds of appeal.
In the result the appeal falls to be dismissed, with costs,
but the judgment of the Court a quo should be altered to read:
“ The six head of cattle are declared executable, with costs ”.
For Appellant : B. Barnes of King William’s Town.
For Respondent: E. M. Heathcote of King William’s Town.
4240182—3
51
SOUTHERN NATIVE APPEAL COURT.
MAS1ZA v NINI.
N.A.C. CASE No. 54 of 1957.
Kino William’s Town: 14th March, 1958. Before Balk,
President, Warner and Pike. Members of the Court.
LAW OF DELICT.
Damages for trespass — When bona fide assertion of right of no
avail.
Summary: Action for damages based on trespass. The facts
appear from the judgment.
Held: That a plea by defendant that he acted bona fide in the
assertion of a right would be of no avail unless as a fact the
right existed.
Case referred to:
Shahmahomed v. Hendricks and Another, 1920 A.D. 151.
Appeal from the Court of the Native Commissioner, Whittlesea.
Warner (Permanent Member):
Plaintiff (present appellant) sued defendant (present respondent)
in a Native Commissioner’s Court for an order: —
“ 1. Declaring him to be entitled to exercise occupational rights
to and over Lot No. 158, Shiloh Mission Station.
2. An Order of Ejectment against Defendant.
3. Costs of Suit.”
His particulars of claim were as follows: —
“ 1. Plaintiff and defendant are Natives as defined by Act No.
38 of 1927, as amended.
2. On 27th August, 1956, arable Lot No. 158, situate in
Shiloh Mission Station, was transferred from Enoch
Masiza to plaintiff, who is lawfully entitled to exercise
occupational rights thereto.
3. The defendant has wrongfully and unlawfully occupied
the said Lot No. 158 in Shiloh Misison Station and
despite demand fails to vacate same.”
Defendant filed the following plea and counterclaim: —
“1. Ad Para. 1 : Defendant admits.
2. Ad Para. 2 : Defendant has no knowledge of the allegations
contained in this paragraph and puts plaintiff to proof
thereof.
3. Ad Para. 3: Defendant denies the allegations contained
in this paragraph and puts plaintiff to proof thereof.
Counterclaim.
1. The parties shall for the sake of convenience be referred
to as hereinbefore.
2. Defendant craves indulgence of the above Honourable
Court that so much of his plea as is relevant to his
counterclaim may be regarded as being incorporated
herein.
3. Defendant states that in or about April, 1956, plaintiff
wrongfully and unlawfully ploughed and sowed his seeds
on arable Lot No. 468, situate at Shiloh Mission Station
in the district of Queenstown, over which defendant has
occupational rights, thereby preventing defendant and/or
his agent, from ploughing and sowing his own seeds on
the said Lot No. 468.
4795177-1
52
4. Defendant states that he intended to sow wheat on the
said Lot No. 468 in or about April, 1956, and would
have reaped 14 bags each valued at £3. 10s.
5. Defendant further states that he intended to sow mealies
on the said Lot No. 468 in or about November, 1956,
and would have reaped 20 bags each valued at £1. 19s. 6d.
6. In the premises set out above defendant has suffered
damages to the extent of £88. 10s., being £49 value of
14 bags of wheat, and £39. 10s. value of 20 bags of
mealies, for which he holds plaintiff liable in law, and
for which he hereby makes claim.
Wherefore defendant prays for judgment against plaintiff for: —
1. An Order declaring him to be entitled to exercise occupa-
tional rights to and over Lot No. 468. Shiloh Mission
Station.
2. An Order of ejectment against plaintiff.
3. Payment of the sum of £88. 10s. damages.
4. Costs of the suit.”
The following judgment was given: —
“Judgment for defendant, with costs, together with damages
in the amount of £10 in respect of his counterclaim.”
On the claim in convention plaintiff appealed on a number of
grounds in regard to the facts which amount to nothing more than
that the judgment is against the weight of evidence and, on a
point of law, that the onus was on defendant. The latter point
was not canvassed in the Court a qua and the pleadings clearly
indicate that the onus was on the plaintiff.
As stated by the Native Commissioner in his reasons for judg-
ment, the decision in this case as to who was entitled to the
rights to the land claimed by the parties rests almost entirely
upon the documentary evidence produced in Court.
These documents show that one Enoch Masiza owned one
arable allotment in Shiloh Mission and in 1932 his rights of occu-
pation were cancelled for non-payment of rates. In 1936 defen-
dant purchased the rights of occupation in respect of this land by
payment of the arrear rates due, and on 28th May, 1938, he was
issued with a certificate of occupation by the Native Commis-
sioner, Whittlesea, relating to Arable Allotment No. 468.
The original register of the Board at page 228 described Enoch
Masiza’s land as “ Garden Lot No. 288 ”. Prior to the allotment
of a land to defendant a new register was compiled and the land
allotted to him was described as “ Garden Lot No. 468 ”, but the
page on which these particulars appear contained the following
entry: “ 14.7.36 — purchased rights No. 228.”
On another page in this register appears an entry relating to
Lot No. 158. It describes the occupier as Enoch Masiza and
bears the entry: “Transfers — 26.7.56 from Enoch Masiza to
Thomas Masiza ”. The latter is the plaintiff in the instant action
and it is on this entry that he bases his claim, a certificate of
occupation having been issued to him by the Native Commissioner
on the 27th August, 1956.
It is thus clear that two certificates of occupation have been
issued in respect of the allotment originally allotted to Enoch
Masiza.
Plaintiff’s contention is that defendant acquired rights to a
land other than that previously allotted to Enoch Masiza, but
took possession of this land and occupied it until it was allotted
to plaintiff.
The Native Commissioner has stated that the members of the
Board who gave evidence did not exhibit much intelligence and
did not appear to understand much about the transfer of lands
in their area, and it is manifest that errors have been made in the
records of the Board. Nevertheless, the case is capable of decision
on the probabilities.
53
The Native Commisisoner very carefully considered these before
deciding that the preponderance lay with defendant. He has
furnished sound reasons for his decision and, in my opinion, it is
correct.
In regard to the award of damages on the counterclaim, it was
contended in pursuance of the ground of appeal that, as plaintiff
acted under colour of right and in pursuance of a certificate of
occupation issued by the Native Commisisoner, he was not liable
in law for any damages. This contention is unsound as it was
laid down in the case of Shahmahomed v. Hendricks and Another,
1920 A.D. 151, at page 158, that “a plea that he acted bona fide
in the assertion of a right would be of no avail unless as a fact
the right existed ”. In the instant case plaintiff deprived defendant
of the use and occupation of his land. He failed to prove the
existance of the right to do so, the certificate of occupation issued
to him being, as is clear from what has been said above, null and
void. He was, therefore, correctly ordered to pay damages.
The appeal falls to be dismissed with costs.
For Appellant: E. M. Heathcote of King William’s Town.
For Respondent: R. S. Canca of Lady Frere.
SOUTHERN NATIVE APPEAL COURT.
SGATYA v MADLEBA.
N.A.C. CASE No. 3 of 1958.
King William’s Town; 25th July, 1958. Before Balk, President,
Harvey and Welman, Members of the Court.
PRACTICE AND PROCEDURE.
Appeal — Condonation of late noting — Award of attorney and
client costs.
Conflict of Laws.
Marriage — Dowry paid in consideration of customary union
followed by civil marriage — Claim for restoration of dowry after
divorce granted on ground of wife's single act of adultery —
Repudiation of wife prior to divorce.
Summary: In the matter of the application for condonation of
the late noting of the appeal it transpired that the appel-
lant’s attorneys were in the main responsible for the delay
and the appellant had an arguable case on appeal on the
merits.
The plaintiff (now respondent) claimed from the defendant
(present appellant) the return of the dowry paid for the latter’s
daughter, Noteru, less the recognised deductions, in conse-
quence of the dissolution by the Native Divorce Court of
his (plaintiff’s) civil marriage to Noteru on the ground of
her adultery. The dowry agreement was entered into in
connection with a customary union contracted between the
plaintiff and Noteru prior to their civil marriage. The defen-
dant resisted the claim on the ground that the plaintiff had
repudiated Noteru because of a single act of adultery on her
part so that in Native law he was not entitled to the return
of any of the dowry.
The lower Court, after entering judgment for the plaintiff
on the claim, with costs, awarded him on his attorney’s
application attorney and client costs in respect of the final
day’s hearing.
54
Held: That the correct approach as regards the application for
condonation of the late noting of the appeal is not solely
from the angle of the negligence of the appellant’s attorney,
but rather from the standpoint of whether in all the circum-
stances of the case sufficient cause has been shown and that
on this basis the instant application should be granted.
Held further: That the principles underlying the civil marriage
obtain in case of conflict between such principles and the
Native custom regulating the incidents of the dowry, and
that in contracting a civil marriage with the man with whom
she is associated in a customary union in respect of which
the dowry agreement was made, the bride binds the dowry
holder in so far as the modification by the marriage of the
Native law incidents of the dowry agreement is concerned.
Accordingly the husband is entitled to recover the dowry less
the recognised deductions when the civil marriage is dissolved
on the ground of a single act of adultery on the wife’s part
notwithstanding that Native custom precludes him from doing
so in those circumstances.
Held further: That the Court below had not exercised a judicial
discretion in awarding the attorney and client costs in that
the award was not made in accordance with the recognised
principles, no misconduct on the defendant’s part being
apparent, nor had it been shown that the defendant’s applica-
tion for a postponement which was granted had the effect of
unnecessarily delaying the action.
Cases referred to:
Klaas v. Gcwabe, 1957 N.A.C. 68 (S).
Mzizi v. Pamla, 1953 N.A.C. 71 (S).
Ledwaba v. Ledwaba, 1 N.A.C. (N.E.) 398.
Raphuti and Ano. v. Mametsi, 1946 N.A.C. (T. and N.) 19.
Fuzile v. Ntloko, 1944 N.A.C. (C. and O.) 2.
Nyeleka v. Nyeleka, 1953 N.A.C. 85 (S).
Mhonjiwa v. Scellam, 1957 N.A.C. 41 (S).
Appeal from the Court of the Native Commissioner, Sterkspruit.
Balk (President):
The first matter to be dealt with in this case was an application
for condonation of the late noting of the appeal.
The Native Commissioner’s Court a quo entered judgment for
the plaintiff (now respondent) on the claim in the action on the
5th November, 1957, and thereupon reserved judgment on an appli-
cation by the plaintiff’s attorney for attorney and client costs.
On the 11th idem that Court awarded the plaintiff attorney and
client costs in respect of the final day’s hearing, i.e., the hearing
of the 5th November, 1957. A request, in writing, by the defen-
dant’s (present applicant’s) attorneys for a written judgment was
lodged with the clerk of the Court on the 27th November, 1957;
but as this request was not made within seven days after judg-
ment, advantage could not be taken of the provision in rule 4
of this Court allowing an appeal to be noted within fourteen days
after the delivery of the written judgment and the alternative
period prescribed in that rule therefore obtained so that the
appeal had to be noted within twenty-one days after judgment to
be timeous, viz., by the 29th November, 1957, in so far as the
judgment on the claim was concerned and by the 5th December,
1957, as regards the award of attorney and client costs, see Klaas
v. Gcwabe, 1957 N.A.C. 68 (S).
It emerges from the affidavits filed in support of the application
that the defendant duly instructed his attorneys on the 4th
December, 1957. to note the appeal, that they posted a notice of
appeal to the Clerk of the Court on the 12th idem which in the
ordinary course should have reached him two days later and that
on learning on the 17th idem that he had not received the notice,
they posted a fresh notice of appeal to him the next day. As is
apparent from what has been stated above, the notice of appeal
which was posted on the 12th December, 1957, was then already
55
out of time. In addition that notice was not stamped as required
by Rule 76 (4) of the rules for Native Commissioners’ Courts
read with Item 10 (a) of Table C of the Second Annexure to
those rules; nor was the notice of appeal which was subsequently
posted to the Clerk of the Court so stamped until the 24th
January, 1958, so that the appeal fell to be regarded as having
been noted on that date, see Klaas’s case (supra). It followed that
the defendant’s attorneys were in the main to blame for the
delay since the defendant had instructed them timeously to note
the appeal against the award of the attorney and client costs and
was only a few days late in his instructions to them anent the
noting of the appeal from the judgment on the claim. Moreover,
the merits of the proposed appeal were put in issue and it appeared
to this Court that the defendant had an arguable case. In these
circumstances and bearing in mind that the correct approach, as
dictated by Rose and Another v. Alpha Secretaries, Ltd., 1947
(4) S.A. 511 (A.D.), is not solely from the angle of the negligence
of the applicant’s attorneys but rather from the standpoint whether
in all the circumstances of the case sufficient cause has been
shown, this Court granted the application.
Turning to the appeal, the plaintiff (now respondent) sued the
defendant (present appellant) for the return of twenty head of
dowry cattle or their value, £104, in1 consequence of the dissolu-
tion by the Native Divorce Court of his civil marriage to the
defendant’s daughter, Noteru, on the ground of her adultery. In
claiming these cattle the plaintiff made allowance for the
customary deductions, in this instance two head. It is unnecessary
to consider this aspect further as these deductions are not in
dispute.
In his plea the defendant denied liability for the return of the
cattle claimed on the grounds that the plaintiff had made no
complaint to him regarding Noteru’s conduct and that the plaintiff
had repudiated her.
Judgment was entered for the plaintiff for nineteen head of
cattle or their value. £95. and costs. In addition the plaintiff was
awarded attorney and client costs in respect of the final day's
hearing.
The appeal is brought on the ground that the judgment, includ-
ing the award of attorney and client costs, is against the weight
of the evidence. A further ground of appeal is that “ the judg-
ment is bad in law in that the Assistant Native Commissioner
failed to apply Native Law and Custom, coming to the conclusion
that a repudiation by respondent of his wife, is not a recognised
Native Custom by which respondent can forfeit his right to the
refund of the dowry cattle paid ”,
It is manifest from the evidence that twenty head of cattle and
one horse were paid on behalf of the plaintiff to the defendant
as dowry for Noteru and that the plaintiff repudiated her because
of her adultery before divorcing her on that ground. It is not
disputed that the plaintiff contracted a civil marriage with Noteru
on the 11th April. 1950; nor is it disputed that the Court below
was justified in finding on the evidence that the plaintiff had
obtained a decree of divorce from her in the Southern Native
Divorce Court on the 21st March, 1957, on the ground of her
adultery.
In the argument advanced on behalf of the appellant reliance
was placed on the following passage which occurs at page 78 of
the report of the judgment in Mzizi v. Pamla, 1953 N.A.C. 71
(5) : —
“ When the plaintiff has proved the divorce by means of
the order of divorce, the onus shifts to defendant to prove
that plaintiff has forfeited his right to a refund of the loholo
paid because of some recognised Native Custom, and if he
has not forfeited such right, to prove what deductions are
allowed by the Customs of the tribe.”
56
But that passage, which, with respect, is unfortunately some-
what loosely worded, falls to be read in its context, i.e., in the
light of the cases cited with approval earlier on the same page,
when it becomes apparent that the passage means no more than
that the husband forfeits his right to the return of the dowry
on the ground of some recognised Natice Custom only where
such custom does not conflict with the principles underlying the
civil marriage in connection with which the dowry was paid. That
this is the position is quite clear from the judgment in Mbonjiwa
v. Scellam, 1957 N.A.C. 41 (S), where the authorities are reviewed
and it is laid down that a dowry agreement made in connection
with a civil marriage must be regarded as ancillary to, and
modified by, the principles underlying such marriage or, in other
words, that effect is given to the incidents of such a dowry agree-
ment as are dictated by Native Custom in so far as they do not
conflict with the principles underlying the civil marriage but where
there is such a conflct then those principles prevail.
It follows that the Native Custom sanctioning the forfeiture of
the husband’s right to recover the dowry paid for his wife, should
he repudiate her and so dissolve their customary union because
of a single act of adultery on her part — only one such act is
relied upon in the instant case-conflicts with the principles under-
lying a civil marriage, which allow of the husband’s obtaining a
decree of divorce from his wife on the ground of a single act of
adultery on her part. Here it must be borne in mind that the
custom sanctioning the forfeiture is based on the concept that
such repudiation and dissolution is wrong. Accordingly, the fact
that the plaintiff repudiated Noteru because of her adultery before
divorcing her on that ground does not debar him from recovering
the dowry paid for her, the position being the same as if he had
obtained the divorce without a prior repudiation as his divorcing
her on the ground in question is in itself in Native Law tanta-
mount to a repudiation. It is true that, according to the evidence,
the union between the plaintiff and Noteru was in the first instance
a customary one and that the dowry agreement was entered into
in respect of that union. But the subsequent civil marriage
between the plaintiff and Noteru superseded and to all intents
and purposes extinguished their customary union, see Ledwaba v.
Ledwaba, 1 N.A.C. (N.E.) 398, at pages 401 and 402, and Raphuti
and Another v. Mametsi, 1946 N.A.C. (T. & N.) 19, at page 20.
Moreover, a civil mariage must be taken automatically to bind,
not only the bridegroom and bride, but also the dowry holder,
in so far as the modification by the marriage of the Native Law
incidents of the dowry agreement is concerned, even where such
agreement was entered into in respect of a preceding customary
union, since in Native Law it is the very essence of a dowry
agreement that the conduct of the bride binds the dowry holder,
the position being that the retention or restoration by him of
the dowry is governed by whether or not she is at fault. This
views gains support from the judgment in Fuzile v. Ntloko,
1944 N.A.C. (C. & O.) 2, see the antepenultimate paragraph on
page 5. Consequently, the fact that the plaintiff’s marriage to
Noteru was preceded by a customary union between them does
not alter the position that he is entitled to succeed in his claim
for the return of the dowry on the ground of the dissolution of
the marriage owing to her adultery and the appeal in this respect
accordingly fails.
Proceeding to a consideration of the award of the attorney and
client costs to the plaintiff, the correct approach is, as pointed
out in the argument on behalf of the respondent, that this Court
will not interfere unless the Court below has not exercised its
discretion judicially, see Nel v. Waterberg Landbouwers Ko-ope-
ratiewe Vereniging, 1946 A.D. 597, at page 609.
It is not possible to gather from the Assistant Native Com-
missioner’s reasons for judgment with any degree of certainty
why he awarded the costs in question as those reasons, in the
main, outline contentions advanced on behalf of the plaintiff and
57
it is uncertain to what extent those contentions were accepted by
him. It is clear, however, that in making the award the Assistant
Native Commissioner relied upon the decision in Nyeleka v.
Nyeleka, 1953 N.A.C. 85 (S) where it is laid down, at page 87,
that the ground for making such an order is gross misconduct
by the opposite party. The only indication in the record of
possible misconduct on the part of the defendant is the denial in
his plea that any dowry as alleged by the plaintiff was paid. But,
viewed in its proper perspective, this denial cannot be regarded
as dishonest and, therefore, not as misconduct on the defendant’s
part, for the plaintiff averred in the particulars of his claim
that the dowry had been paid for Noteru, who at all material
times was his wife married according to civil rites, whereas it is
manifest from the evidence that the dowry agreement was in fact
made in respect of their customary union which preceded their
marriage.
In Nel’s case (supra), at page 607, it is stated that the true
explanation of awards of attorney and client costs not expressly
authorised by statute (as is the case here) seems to be —
“ that, by reason of special considerations arising either
from the circumstances which give rise to the action or
from the conduct of the losing party, the Court in a particular
case considers it just, by means of such an order, to ensure
more effectually than it can do by means of a judgment for
party and party costs that the successful party will not be
out of pocket in respect of the expense caused to him by the
litigation. Theoretically, a party and party bill taxed in
accordance with the tariff will be reasonably sufficient for
that purpose. But in fact a party may have incurred expense
which is reasonably necessary but is not chargeable in the
party and party bill. See Hearle & McEwan v. Mitchell's
Executor (1922, T.P.D. 192). Therefore in a particular case
the Court will try to ensure, as far as it can, that the success-
ful party is recouped."
Applying these principles to the instant case, it seems that the
application by the defendant’s attorney at the close of the
plaintiff’s case on the first day of the trial in the Court below,
i.e. on the 4th October, 1957, for a postponement, calls for con-
sideration. The defendant’s attorney intimated that he required
the postponement to call five witnesses and that the witness whom
he wished to call first, was indisposed. The application was
opposed by the plaintiff’s attorney but, according to the record,
the hearing was postponed “ by agreement ” to the 5th November,
1957. At the resumed hearing on that date, the defendant’s
attorney closed his case after the defendant only had given
evidence. In his evidence the defendant admitted that twenty
head of cattle and one horse had been paid as dowry for Noteru,
which was in keeping with the evidence for the plaintiff in this
respect except for the horse in regard to the paiyment of which
the evidence for the plaintiff was silent. The defendant’s attorney
had admitted on the first day of the trial that the evidence
adduced by the plaintiff as regards the dissolution of his marriage
to Noteru on the ground of her adultery proved that fact. The
only aspect, therefore, in respect of which the defence needed to
call evidence was the alleged repudiation of Noteru by the plaintiff
and, to establish this, the defendant’s evidence alone was adequate
in view of the admissions in this respect in the evidence for the
plaintiff. Here it should be mentioned that the defendant’s
persistence in his defence based on the repudiation in question
cannot be regarded as frivolous in the light of the above-quoted
passage in Mzizi’s case which, on the face of it, appeared to
support such a defence, particularly as the report of Mbonjiwa’s
case (supra) had not yet been published at the time. In the
circumstances there can be no doubt that the application for the
postponement on the grounds advanced by the defendant's
attorney was based on a misconception of what was required,
but the question whether the application had the effect of unneces-
sarily delaying the trial of the action still remained, see Reid
58
N.O. v. Royal Insurance Co. Ltd., 1951 (1) S.A. 713 (T.P.D.), at
page 720. Whilst the application was still being dealt with in the
Court below, it was, according to the record, already 4 p.m., so
that it is by no means certain from the record that the action
would have been finalised on that day had the defendant only
then been called and his case closed after he had given evidence,
bearing in mind that argument by the attorneys for both parties
still had to be heard; and from the Assistant Native Commis-
sioner’s reason for judgment it would appear that the action
could indeed not have been disposed of on the first day of trial
in view of “ argument and objections raised over irrelevant
rifles ”. The Assistant Native Commissioner does not state specifi-
cally who was responsible for such argument and objections, but he
adds that he had to mediate between the attorneys to arrive at a
convenient settlement acceptable to both, which suggests that both
attorneys were responsible for the argument and objections. How-
ever that may be, the record does not indicate what the position
is in this respect. It follows that the record does not establish that
conduct on the part of the defence had the effect of unnecessarily
delaying the trial of the action. That being so, and as, ex facie
the record, there appear to be no other material factors calling
for consideration in so far as the award of the attorney and
client costs to the plaintiff is concerned, it is clear that the Assis-
tant Native Commissioner did not exercise a judicial discretion
in making the award so that it falls to be set aside. Here it may
be as well to mention that the Assistant Native Commissioner’s
statement in his reasons for judgment that, as a result of the
pretrial conference, it was decided that the quntum of the dowry
paid was to be the only matter in issue, is not borne out by the
record.
In the result the appeal should be allowed in part, with costs,
and the judgment of the Court below altered to read : “ For
plaintiff for nineteen head of cattle or their value, £95, and costs.
The application for attorney and client costs is refused.”
A further matter calls for mention, viz., that a whole line was
omitted at the foot of page 2 of the certified copies of the record
which resulted in the time of this Court being unnecessarily taken
up in the course of the argument. The gravity of lapses of this
nature, i.e., that they may lead to the appeal being dealt with
on incorrect premises, should be brought home by the Natiye
Commissioner to the officer responsible to obviate a recurrence.
For Appellant: J. D. K. Saayman of Zastron.
For Respondent: W. M. Tsotsi of Lady Frere.
NORTH-EASTERN NATIYE APPEAL
COURT.
SABELA v NJILO.
N.A.C. CASE No. 49 of 1957.
Pietermaritzburg: 16th April, 1958. Before Menge, President,
Ashton and Oftebro, Members of the Court.
PRACTICE AND PROCEDURE.
Appeal from Chiefs Sourt — Lapsed judgment.
Summary: The applicant successfully applied for condonation
of late noting of an appeal against a judgment of the Native
Commissioner who had allowed an appeal against a Chief’s
judgment altering the latter to one for defendant with costs.
The Chief’s judgment had lapsed prior to the hearing of the
appeal by the Native Commissioner.
59
Held: That a final judgment was not possible in an appeal
from a lapsed judgment of a Chief and that the appeal should
have been struck off the roll.
Statutes referred to:
Sections 7 (2) and 9 (2) of the rules for Chiefs’ Courts.
Appeal from the Court of Native Commissioner, Pietermaritz-
burg.
Menge, President, delivering the judgment of the Court:
This is an application for condonation of late noting of appeal.
Plaintiff sued defendant before a Chief for £23 for cutting down
certain wattle trees which plaintiff claimed were his. The Chief
gave judgment for plaintiff on 21st May, 1955. An appeal was
noted on 25th August, 1956, and at the same time the defendant
applied for condonation of late noting of that appeal by reason
of the fact (which was not disputed) that the Chief’s written
reasons were only furnished on 18th August, 1956. There is
nothing on the record to show that the Native Commissioner
ever authorised the registration of the Chief’s judgment under
section 7 (2) of the Rules for Chief’s Courts.
At the hearing before the Native Commissioner the plaintiff
was in default, and after evidence was given by the defendant
(i.e. the appellant before the Native Commissioner, who is now the
respondent) the Native Commisioner reversed the Chief’s judgment
in favour of one for defendant. This was on the 5th February,
1957. An appeal was noted on the 10th June, and at the same
time an application for condonation of the late noting of the
appeal was filed.
The application for condonation was not apposed and we
granted it. Mr. van Heerden, who appeared before us for the
appellant (respondent in the Native Commissioner’s Court and
plaintiff in the Chief’s Court) then submitted (as the Native Com-
missioner has already set out in his reasons for judgment) that
the appeal had lapsed in terms of section 9 (2) of the Chiefs’
Courts Rules when the matter came before the Native Commis-
sioner. Mr. Manning for respondent had to concede this, for
that is indeed the position. When the Native Commissioner heard
the matter there was no longer a judgment to be appealed against,
the Chief’s judgment having lapsed for want of registration, and
the appeal should have been struck off. It was not competent
for him to alter the judgment to one for defendent and in that
manner to deprive the plaintiff of his rights to take further steps.
The appellant before the Native Commissioner had to come to
Court for relief and the fact that he did so, erroneously, by way
of appeal instead of, for instance, by way of stay Of execution,
could hardly have added to the expenses. Consequently, he was
entitled to his costs.
In the result the appeal is upheld with costs save as to costs
of application for condonation of late noting of apppeal and the
Native Commissioner’s judgment is altered to read: “Appeal
struck off roll with costs against respondent (i-e- plaintiff in the
Chief’s Court).”
For Appellant: Adv. J. A. van Heerden instructed by C. C. C.
Raulstone and Co.
Ror Respondent: A. Manning.
NORTH-EASTERN NATIVE APPEAL
COURT.
MOCHE v. MOCHE.
N.A.C. CASE No. 95 of 1957.
Pretoria: 6th June, 1958. Before Menge, President, Nel and
O’Connell, Members of the Court.
60
PRACTICE AND PROCEDURE.
Joinder of parties — Action for transfer of undivided share in
land acquired by prescription.
Summary: Certain 23 co-owners of a farm held in undivided
shares had parcelled out the farm among themselves.
Plaintiff acquired by prescription the portion which had been
allotted to defendant. He thereupon sued defendant, who
had a separate titled deed to his 1 /23rd undivided share, for
transfer of that share. Defendant pleaded in limine that the
summons was bad in that the other co-owners had not been
joined. The Native Commissioner dismissed this special
plea, and, after hearing evidence, gave judgment for plaintiff.
On appeal only the question of non-joinder was raised.
Held: That where land held in undivided shares has been
parcelled out among the co-owners and transfer of a share
in respect of which a separate title deed is in existence is
claimed on the ground of acquisition by prescription, it is
not necessary to join as co-defendants those co-owners whose
portions are not affected by the adverse occupation.
Statutes referred to:
Section two (2) of Act No. 18 of 1943.
Cases referred to:
Le Roux, v. Malherbe, 2 Buchanan 192.
Williams v. Rhodes Fruit Farms Ltd., 1917 C.P.D. 6.
Amalgamated Engineering Union v. Minister of Labour,
1949 (3) S.A. 637.
Muller’s Executors v. Small Farms Ltd. 1910 T.S. 199.
Appeal from the Court of Native Commissioner, Pretoria.
Menge, President:
Plaintiff sued defendant for the transfer of property. His case
was that in 1950 he had acquired by prescription a 1 /23rd share
in a farm which was held in undivided shares by 23 co-owners,
of whom the defendant was one and each of whom had his own
separate title deed. Plaintiff maintained that he had occupied the
portion allotted to defendant adversely to him nec vi, nec clam,
nec precario ever since 1920. It was common cause that the
co-owners had divided the land up roughly among themselves and
that the portion which the plaintiff claimed had been so allotted
to defendant.
The defendant pleaded a denial of the acquisition of the
prescriptive right; but he also pleaded in limine that the summons
was bad because the owners of the other individed shares had
not been joined as cO-defendants. The Native Commissioner did
not uphold this special plea and he also refused a stay of the
proceedings to enable defendant to appeal on the point. Evidence
was then heard and thereafter the Native Commissioner gave
judgment for plaintiff with costs, ordering the defendant to do
all that is necessary to effect transfer of the share to plaintiff,
and failing this, authorising the Messenger of the Court to do so.
Defendant appealed on a number of grounds concerning the
merits and questions of law, but Mr. Cooper who appeared before
us for the defendant abandoned all the grounds save two which
read as follows : —
“ The Native Commissioner erred in law in holding that
it was not necessary to join the other 22 co-owners where
prescriptive user is being exercised against all these
co-owners.”
“ The Native Commissioner erred in concluding that
because an undivided shareholding could be sued for and/or
transferred, that this in any way enabled the Court to come
to the conclusion it did without having insisted on joinder of
the other co-owners.”
61
As regards the merits Mr. Cooper was prepared to concede
that there had been adverse user nec vi, nec clam, nec precario
for over 30 years. He did not contend that any portion of the
farm other than that allotted to defendant had in fact been
occupied by plaintiff; but he contended that adverse user was
exercised, not against the defendant alone, as the plaintiff would
have it, but of necessity against all the co-owners simply because
the land was held in undivided shares, and consequently joinder
of the other co-owners was necessary.
Mr. Joubert, for the plaintiff (now respondent) contended that
plaintiff’s adverse user was exercised against defendant alone;
that his claim is against defendant alone, and that the other
co-owners have nothing whatsover to do with the matter.
A great deal of case law was cited in argument, but Mr. Joubert
informed us that he had not been able to find any decided case
directly in point. To this extent, then, the matter is res nova.
Mr. Cooper relied strongly on Williams v. Rhodes Fruit Farms
Ltd., 1917 C.P.D. 6, but this case does not support him. There
the plaintiff sought to acquire rights to land as a member of the
Pniel Institute which held certain rights in the land, and to
succeed in his claim he had to seek a declaration that the Pniel
Institute had become possessed of the ground by prescription.
The Institute's rights were directly affected — even though,
possibly, not adversely — and consequently it was held that the
Institute should have been joined. Searle, J., giving judgment
said : —
“ Now with regard to the land which he says has been
acquired by prescription he asks the Court to declare that
the Institute has become possessed of this bround by prescrip-
tion . . . This Court is not in the habit of declaring the rights
of people in land without having before it all those whose
names are registered in respect of the title of that particular
piece of land.”
Similarly in the earlier cases referred to in the judgment (one
dealing with water rights and the other with a right of way,
claimed by virtue of ownership) the rights of certain third parties
who did not have notice would have been directly affected. But
what is the position when the rights of other co-owners are not
affected?
Le Roux v. Malherbe, 2 Buchanan 192, is a clear authority for
the proposition that a definite undivided share in land can be
acquired by prescription. Mr. Cooper did not dispute this, but he
pointed out, rightly, that this case did not dispose of his argu-
ment as regards non-joinder.
I am inclined to agree with Mr. Joubert that plaintiff’s adverse
user was exercised against the defendant and against defendant
only. The land had been shared out by the co-owners among
themselves, apparently to their mutual satisfaction, many years
ago, and the others would, consequently, be estopped from now
claiming any interest in the defendant’s share, save, no doubt, in
the event of registration of subdivisional title. They would, there-
fore. have no concern whatsoever with plaintiff’s claim to acquire
defendant’s share of the farm. Citing Amalgamated Engineering
Union' v. Minister of Labour. 1949 (3) SA 637, Mr. Joubert urged
that to qualify for joinder the other co-owners would have to
have a direct and substantial interest in the claim. But it is really
immaterial whether the adverse user was exercised only against
the defendant or against all the co-owners as Mr. Cooper has
submitted. Adverse user for the prescribed period is admitted
over a certain portion of the farm representing the extent which
a holder of a l/23rd undivided share may occupy. Consequently
plaintiff already in 1950 had become the owner ipso jure of a
1 / 23rd undivided share, in terms of section 2 (2) of the Prescrip-
tion Act. 1943. This adverse user was exercised against someone,
and against whosoever he or they may be plaintiff, as owner, is
entitled to claim registration of his title. Plaintiff is not seeking
— as Mr. Cooper’s argument seems to imply — to become the
owner, but to have his ownership title registered. He therefore
brings his action against the only person who, he considers, is
62
affected by this claim — namely the defendant; and he is affectecf
to the extent that he is asked to surrender his title. That title is
the only subject matter in dispute. Nothing is wanted from the
other co-owners who all hold separate title deeds to their
undivided shares. Not only have they no direct or substantial
interest in this claim but they are not even remotely concerned.
The Native Commissioner’s judgment is correct and the appeal
is dismissed with costs.
Nel, Member: It was contended on behalf of appellant that all
the co-owners must be joined in every case concerning acquisitive
prescription of immovable property. I do not consider that this,
is essential.
The general rule is that “ where the judgment sought is a
declaration of rights in relation to land the registered owners of
that land must be before the Court, for the Court is not in the
habit of declaring the rights of persons of land without having
before it all those whose names are registered in respect of the
title of that particular piece of land ”. (See Beck’s Theory &
Principles of Pleading in Civil Actions, page 11.)
But according to Beck at page 10, “ it seems that joinder is
only essential of those parties who have such an indivisible
interest in the subject matter of the action that the judgment
sought must necessarily affect them ”. I cannot see why it
should be essential in a case in which other parties may have
similar rights depending on a similar title, but who are not neces-
sarily affected by any judgment in an action in which they are
not parties.
In the case of Muller’s Executors v. Small Farms 1910 T.P.D.
199, Mason J, pointed out at page 189 that there are numerous
cases in which exceptions of non-joinder have not been allowed.
The onus was consequently clearly on the appellant to prove
that the co-owners had a direct and substantial interest in
respondent’s claim and that they would be prejudiced by any
judgment given if they were not joined as defendants. This
appellant has failed to do. He contended that the co-owners had
to be joined as defendants because of the sole fact that they were
in accordance with their title deeds co-owners of the share
claimed by the respondent.
It is not apparent to me that the rights of the other co-owners
are affected by respondent’s claim. Respondent is not concerned
with their titles. The right he claims is registration as the owner
of that share which is registered in the name of appellant. And
if. in consequence thereof, he becomes registered as owner of
that one twenty-third share the rights of the other co-owners
would in no way be infringed. They would in no way be
prejudiced. They would merely have to negotiate with respon-
dent instead of appellant when negotiating about subdivision of
the farm. They would be in a similar position, in respect of the
relative one twenty-third undivided share, as they would be for
example in the case of sale thereof, or devolution thereof in a
deceased estate. Adverse user has been against appellant only.
I have read the judgment of the President and agree with him.
O’Connell, Member: The question we are called upon to
answer is simply this: “Is plaintiff’s summons fatally defective
because he has failed to join all the other co-owners as
co-defendants? ” In approaching this problem, I have applied
the touchstone mentioned by Fagan, A. I. A. (as he then was) in
Amalgamated Engineering Union versus Minister of Labour
S.A.L.R. 1949 (3) at page 657 and have posed myself this
question: “In what manner, and to what extent, would the
Court’s order affect the interests of the other co-owners? ”
As the evidence shows, the farm was purchased in 1913 by 23
co-purchasers. Each co-purchaser received a title deed showing
him to be the owner of a one twenty-third undivided share of the
farm. By agreement each co-purchaser was allotted a defined
portion of the farm for his own use. The farm was not worked
on a communal basis but each co-purchaser worked the portion
63
allotted to him for his own exclusive benefit. Plaintiff has openly
so used and enjoyed the portion allotted to defendant for a
period in excess of 30 years and no objection to his so doing has
ever been made by any of the other co-purchasers.
In the light of these facts, it cannot be said that the other
co-owners have a direct, proprietary or substantial interest in the
portion allotted to defendant. I cannot see in what way their
interests would be affected if defendant’s portion were to be
transferred to plaintiff. I would not affect their rights of owner-
ship because they would still each retain their respective 1 /23rd
shares unimpaired. The only change that the Court’s order would
bring about would be the substitution of plaintiff for defendant
as the registered owner of the latter’s undivided 1 /23rd share and
such change would in no way affect the interests of the other
co-owners.
Counsel for defendant submitted that, because transfer was
claimed on the ground that Plaintiff had acquired ownership by
prescription, a different approach to the question of joinder of
parties from that in the cases of acquisition by other modes was
called for. I have been unable to find any authority in support
of this contention which is accordingly rejected.
The other co-owners cannot be said to be necessary parties to
the action and the question must, therefore, be answered in the
negative.
I concur in the judgment of the learned President and agree
that the appeal be dismissed with costs.
For appellant: Adv. C. Cooper, instructed by Solomon &
Nicholson.
For Respondent: Adv. C. P. Joubert, instructed by Austin
Goudvis, Sapirstein & Kuyper.
NORTH-EASTERN NATIVE APPEAL
COURT.
LANGA AND ANOTHER v. KHUZWAYO.
N.A.C. CASE No. 10 of 1958.
Vryheid: 2nd April. 1958. Before Menge, President, Ashton and
Schultz, Members of the Court.
ASSAULT IN NATIVE LAW.
Assault actionable in Natal Native Law — Responsibility of
Kraalhead.
Summary: Plaintiff (now respondent) sued the defendants,
father and son, jointly for £1,500 damages, the latter in
respect of an assault on plaintiff and the former as kraal-
head. £100 were awarded. The defendants appealed on the
merits and failed, but the Court considered the legal position
of the liability of the father as kraalheid.
Held (Menge, President, dissenting): That assault is an
actionable wrong in Natal Native law, for which the kraal-
head is responsible.
Statutes referred to:
Sections eleven (1), fifteen and twenty-four. Act No. 38 of
1927.
Sections 130 and 141 of the Natal Code of Native Law.
Cases referred to:
Sipongomana v. Nkulu & Others, 1901, N.H.C. 26.
Madumo v. Manne, 1932. N.A.C. (T. & N.) 16.
Mbata v. Mbata, 1937, N.A.C. (T. & N.) 75.
Mkungana & Others v. Dumke, 1939, N.A.C. (C. & O.) 68.
Nzuza v. Biyela & Others, 1951, N.A.C. (N.-E.) 319.
64
Appeal from the Court of the Native Commissioner, Baba-
nango.
Menge, President, dissenting:
In the Native Commissioner’s Court plaintiff sued defendants
for £1,500 damages for injuries alleged to have been caused in an
assault on him by defendant 1. Defendant 2, his father, is joined
as kraalhead of defendant 1.
Defendant 1 pleaded a denial of the assault, and, in the
alternative, somewhat inconsistently, self-defence and provocation.
Defendant 2 denied that he was liable in respect of the assault.
Evidence was heard for both parties, who were represented
but for the defence only defendant 1 gave evidence.
The Native Commissioner awarded £100 damages and costs.
The defendants appealed on the facts and on certain further
grounds which were abandoned by Mr. Uys at the hearing of
the appeal. One of these was that the award was excessive.
As to the facts we are unable to find fault with the Native
Commissioner’s conclusions. It is common cause that the plaintiff
lost the sight of one of his eyes as a result of a blow from an
axe delivered by defendant 1. The onus then rested upon defen-
dant to prove the self-defence or provocation, but he failed to
discharge that onus. The only difficulty arises from the question
whether defendant 2 is liable. Mr. Uys did not argue that there
is no liability in law. Nevertheless, a mistaken view of the
law on the part of the parties does not bind the Court; and the
fact that the appellant has not taken the point on appeal makes
no difference as this Court has “ full power of review (section
fifteen of Act No. 38 of 1927). It is very necessary that these
powers should readily be used, because legal practitioners are
seldom well versed in the finer points of Native law and adminis-
tration and look to the Courts for guidance. It follows that as
regards the second defendant the judgment can only stand if the
Court is satisfied that he is liable in law.
In the record, after the addresses at the conclusion of the
evidence, there appears the following note by the Native Com-
missioner:—
“ Native Commissioner queries with parties fact that no
indication has been given by either side of what law they
base their case on. As claims for damages as in present
circumstances are well recognised in Natal Native law he
proposes to apply Native law.”
This is a wrong approach. Since Act No. 38 of 1927, there is
no such thing as basing one’s case on any particular system of
law, or, as it is sometimes said, bringing a case under one system
or another. The position is that a person who considers that his
legal right have been infringed or who seeks redress simply
sets out the cause of his complaint in his summons. Any
suggestion that one system of law or the other should be applied
to that complaint would be quite out of place. Being a Court of
law [section ten (2)] it is the duty of the Native Commissioner
to deal with the matter under the ordinary law of the land.
There is only one exception : When questions of customs followed
by Natives are involved, then section eleven (1) gives the Native
Commissioner a discretion to apply Native law to such customs
subject to certain conditions.
Now, in the present case in so far as the plaintiff’s claim against
defendant 1 for damages for assault is concerned and the defence
thereto, no question of customs followed by Natives is involved
at all if one follows the meaning assigned to the word
“ involving ” by the Appellate Division in ex parte Minister of
Native Affairs in re Yako versus Beyi, 1948 (1) S.A. 391. And
indeed the Native Commissioner did not decide this claim
according to Native law, not even the amount of compensation
to be paid. He decided the case against first defendant fairly on
orthodox common law principles. But in regard to the claim
against second defendant the Native Commissioner had a dis-
65
creation because, not only was a question of customs followed
by Natives involved, viz. the liability of a kraalhead, but the
very cause of action is governed by and dependant on Native
law. The Native Commissioner decided to apply Native law to
this claim, no doubt because such a claim is not known to
common law. The only question to be decided then, is whether
in Native law a kraalhead is responsible for a delict committed
by an inmate of his kraal when the action against the inmate is
one decided under common law and in which no question of
customs followed by Natives is even involved. One only needs
to state this proposition to realise that there is something wrong.
It may be simply that Native law should not be applied because
the result, in terms of the proviso to section eleven (1), would be
“ opposed to the principles of a public policy or natural justice ”.
But these considerations are an unsafe guide : quot homines tot
sententiae. It may be as well to enquire whether it is at all
possible to apply Native law to the second claim. Clearly
Native law can only be applicable if assault is actionable in
Native law for, in the face of such decisions as Madumo v.
Manne, 1932, N.A.C. (T. & N.) 16, no one will wish to argue
that the kraalhead was liable even if there was no action against
the wrongdoer. This narrows the enquiry down to the question
whether assault is actionable in Natal Native law. Outside Natal
the rule has always been that it is not [see Madumo’s case above
and also Mkunqana & Others v. Dumke, 1939, N.A.C. (C. & O.)
68, where McLoughlin, President, said : “ In pure Native law,
no action lies at the suit of an individual who has been injured
in his person for the action is one which can be instituted only
by the Chief of the injured person, it being a case of blood ”].
In pursuing this further enquiry the first rule to be observed
is that any law which imposes a liability on an innocent person
for the wrongful acts committed by another is a very harsh
measure which must be strictly interpreted; the more so because
the reasons upon which the liability of the kraalhead rested in
Native law have largely ceased to exist under modern conditions,
which favour the growth of individualism. These reasons were
that the kraalhead in Native life had control over his kraal
inmates; that he was responsible to his chief for their good
behaviour, and that he alone had de jure ownership of all their
property.
The Native Commissioner’s contention that claims for damages
for assault are “ well recognised in Natal Native law ” seems
to have its roots in the case of Sipongomana v. Nkuku & Others,
1901, N.H.C. 26. The headnote to this case reads: “Held: That
a cause of action does lie, under Native law, for damages caused
through the killing of a man by others but that is incorrect.
That is what the editor decided. The Court decided something
quite different. It held that injury to a person, actionable in
common law, is actionable under a statute which makes only
claims known to Native law actionable unless it is manifestly
unjust not to allow an exception. As was said later in Kanyile v.
Zuma & Others, 1929, N.H.C. 10: “The law as laid down in the
case Sipongwana (sic) versus Nkuku & Others is in accord with
the principles and policy of natural equity by which we are
required to be guided under the provisions of 80th section of
the Courts Act, 1998 . . . ”. This case did not and could not
decide that personal injury was actionable in Native law. The
learned judges were agreed that it was not, except— in the view
of the Judge President — among some tribes.
The ruling in Sipongomana’s case served a very necessary
purpose at that time and right up to 1927, when section eighty
of the Natal Courts Act was repealed and the entire structure
altered by section eleven of the Native Administration Act. The
importance of this change and the editor’s mistake in Siponga-
mana’s case were overlooked by McLoughlin, President, when he
said in Mbata v. Mbata, 1937, N.A.C. (T. & N.) 75 (a Natal
case): “It is true that in old Native custom the injured party
had no claim for personal recompense, the Chief being regarded
by Native law as the proper person to prosecute, but in view
66
of the decision of the Native High Court in Sipongomana v.
Sikuku and 2 Others, 1901, N.H.C. 26, this Court considers itself
bound to give a personal right of action in assault cases There
was no need for the Court to hold itself bound to give a right
of action; that right already existed — in common law. This deep-
rooted misunderstanding as to the effect of section eleven of
the Act was removed when the matter of Yako v. Beyi came
before the Appellate Division, but subsequently it again raised
its head in cases such as Nzuza v. Biyela & Others, 1951, N.A.C.
(T. & N.) 319. In that case the Court also misconstrued the
effect of Sipongomana’s case.
So far then as pure Native law is concerned the position in Natal
is no different and never was to what it is elsewhere in the
Union. Assault is not actionable. If in any particular tribe
or circumstances it was actionable that would, of course, require
proof.
Does the Natal Code alter this in any way? Nowhere it is
laid specifically that assault is actionable. But sections 141 and
130 would appear to be in point. The former makes a kraal-
head liable in respect of delicts committed by an inmate. This
can only refer to delicts known to Native law as modified by the
Code and not to other common law delicts, for the Code is not
just a set of laws applicable to Natives, but a code to Native
law. That flows from section twenty-four of the Act read with
section one of Natal Law, No. 19 of 1891, and section five of
Natal Law, No. 44 of 1887. No one would seriously suggest for
instance that in terms of a code of Native law a kraalhead
should be sold up lock, stock and barrel because his major son,
who happens to stay with him, drove a motor vehicle negligently
on his way to town or defrauded someone by forging a cheque.
Section 130 of the Code does not take matters any further.
It makes any “ wrongful act committed against any Native ”
actionable. By “ wrongful act ” cannot be meant a mere moral
wrong because the Code is not a code of behaviour but a code
of law. The expression can only mean an act in respect of
which the person against whom it has been committed has a
right of redress; and for the reasons already given this must be
a right of redress in Native law. To hold otherwise — to construe
the words “ a wrongful act ” as including common law delicts —
would be a senseless tautology, or at least an indifferently
expressed and quite irrevelant enunciation of a well-known rule
of common law. True, in Native law there is an action for
personal injury. But it lies only with the Chief, not with the
person injured. The Code does not alter this position.
For these reasons it is clear that assault is not actionable in
Natal Native law. That being so there is no claim against the
second defendant in the present case. The appeal should be
upheld as regards the second defendant. However, in view of
the majority opinion it is ordered that the appeal is dismissed
with costs, but the Native Commissioner’s judgment is altered to
read : —
“ For plaintiff for £100 and costs against both defendants,
the one paying the other to be absolved.”
Ashton, Permanent Member, with whom Schultz, Member,
concurs :
Before proceeding to a discussion of the merits of this case it
would seem necessary to deal first with the points raised by the
learned President as to whether the Native Commissioner was
correct in ruling that the case be decided under Native law and
custom and whether under Native law and custom a claim for
damages arising out of an assault exists.
It is my view that an Appeal Court has no right to rule that a
Native Commissioner has not exercised properly the discretion
imposed in him by section eleven (1) of Act No. 38 of 1927 unless
it is clear that he was manifestly wrong in his decision and far
from that being the position in the case now on appeal it is
my view that the Native Commissioner’s decision was right.
67
In the first place the Court’s approach to the matter should be
whether plaintiff is debarred from bringing his action under
whichever law it would seem he has brought his case. In the
case of Yako v. Beyi. 1948 (1), S.A. 388 (A.D.), page 393, the
learned Judge of Appeal said: "The matter that is really sought
to be determined is whether a Native woman as such is debarred
from bringing an action for damages for seduction against a
Native man in a Native Commissioner’s Court” and he proceeded
to consider the question and to answer it in that sense.
In the case now before this Court it is clear from the inclusion
of first defendant’s kraalhead as second defendant and subject
(only under Native law) to liability for the delict of the inmate
of his kraal, that plaintiff brought his action under Native law.
The fact that the damages sounded in money does not negative
this view as it has become longstanding practice for damages
sounding in money to be awarded in proper cases when claimed
under Native law.
The Native Commissioner ruled that Native law should be
applied and the parties have in no way queried that ruling. It
is not for this Court of its own motion to say it was wrong
and in my opinion it was right anyway.
The next point to consider is whether a claim for damages
arising out of an assault exists under Native law.
Section 130 of the Natal Code of Native law (which incidentally
comprises and constitutes Native law in Natal) provides that a
wrongful act committed against a Native founds an action against
the transgressing Native. In the case of Sipongomana v. Nkuku
& Others, 1901. N.H.C. 26, the Native High Court held that a
cause of action did lie under Native law for damages caused
through the killing of a man by others. In reaching that con-
clusion the Court explained that in such actions the chief in
earlier days took the necessary steps to compensate the sufferer
but that as Chiefs in Natal never had paramount powers they
could not confiscate the property of a transgressor and out of it
compensate the person wronged. Campbell, J.P. on page 29 said :
“ ... It would be manifestly unjust to deny such a personal right
now, considering the changed relationship of Chief and people
as well as the practice of the Courts ”. If it would have been
unjust then to deny such a right how much more unjust would
it be now.
The Courts of Natal and this Court have followed that 1901
decision in countless cases and it would be more than a bold
step to rule contrary to it after half a century of recognition and
acceptance. Whatever may have been pure Native law in Natal
or in any of the other Provinces of the Union it is established
in Natal that a claiim for damages for assault is actionable under
Native law and has been since 1901.
To rule otherwise without the conviction — after exhaustive
argument on the point which the Court has not had in this case —
that this and the Native High Court have been manifestly wrong
is a step I am not prepared to take and consequently I find
myself unable to agree with the learned President’s view. Mr.
Uys on behalf of defendant indicated that he did not rely on
the defence that damages for assault was not actionable under
Native law.
And now having expressed the view that the case was rightly
heard under Native law and that an action did lie it remains to
deal with the facts and the merits of the case :
Plaintiff sued two defendants jointly and severeally for £1,500
damages for wrongful and unlawful assault on the part of first
defendant (who at the time was resident at second defendant’s
kraal) whereby plaintiff suffered damage to his eye, ears and arm.
Defendant denied the assault and alternatively if the injuries
were found by the Court to have been inflicted by first defendant
then they pleaded that the injuries were inflicted during first
defendant’s efforts to repel an unprovoked assault on him by
plaintiff.
4795177-2
68
After hearing evidence for both plaintiff and the defendants
the Native Commissioner gave judgment for plaintiff for £100
damages and costs.
Prior to the trial plaintiff successfully applied to the Native
Commissioner for an interim-interdict against the defendants
restraining the removal of cattle in their kraal and as a result the
Messenger of the Court attached nine cattle belonging to the
defendants.
The defendants were called upon in the order to appear before
the Native Commissioner on the 1st August, 1957, to show cause
“ why this order should not become final ” but on that date the
parties did not appear and consequently, it would seem, the
interim-interdict ceased to be of force and effect.
In due course defendants noted an appeal against the Native
Commissioner’s judgment on the grounds, firstly that the evidence
showed that plaintiff received his injury in a fight and by sheer
accident or in an effort by first defendant to repel an attack by
plaintiff upon him: secondly, the Court erred in granting and
confirming the interim-interdict and in finding that second
defendant “ was liable for the alleged assault on plaintiff by
defendant No. 1 on the evidence adduced thirdly, “ that the
judgment was against the weight of evidence ” and, finally, that
the damages claimed or awarded were not proved and the award
was excessive.
The facts found proved by the Native Commissioner were —
“(1) that defendant No. 1 unlawfully assaulted plaintiff with
an axe;
(2) as a result of such assault the plaintiff has completely
lost his right eye;
(3) that defendant No. 2 is the father of defendant No. 1;
(4) that defendant No. 1 resides in the kraal of his father
defendant No. 2.”
Nothing has been shown to justify the Court in saying that the
Native Commissioner was wrong in his findings of fact and they
are accordingly accepted as correct.
The Native Commissioner recorded that no indication was
given by either side as to what law the claim should be dealt
under and he adopted Native law. The correctness of this deci-
sion has already been dealt with.
The next point to consider is the amount of damages awarded.
£100. which the Native Commissioner states is the equivalent of
seven head of cattle.
The Native Commissioner based his award of damages on the
evidence placed before him and defendants in their appeal have
raised the point that the amount was excessive but they have not
indicated in what respect they base their contention except by
saying “ taking into account the conduct of the parties shortly
before and after the alleged assault Mr. Uys abandoned the
second and fourth grounds of his appeal.
An Appeal Court will only alter an award of this nature when
it has been shown to be grossly excessive; this has not been done
in this case and in any case the ground of appeal has been
abandoned.
In the circumstances I think the appeal should be dismissed
with costs but to make the Native Commissioner’s judgment quite
clear it should be altered to read : —
“ For plaintiff for £100 and costs against both defendants,
the one paying the other to be absolved.”
For appellant: C. J. Uys.
For respondent: H. L. Myburgh.
69
NORTH-EASTERN NATIVE APPEAL
COURT.
Ex Parte MASILELA.
N.A.C. CASE No. 40 of 1958.
Pretoria: 3rd June. 1958. Before Menge, President, in
Chambers.
PRACTICE AND PROCEDURE.
A ppeal ex parte. — Review of act of Registrar.
Summary: Applicant had unsuccesfully sought a vindicatory
interdict against one FOSI MABUSA in the Native Com-
missioner’s Court, Barberton, on an ex parte application. He
thereupon sought to appeal against the Native Commis-
sioner’s decision without serving notice of appeal on Fosi
Mabusa and without furnishing security for costs. The
Registrar refused to enrol the appeal on the ground that
service of the notice of appeal and security for costs were
required in terms of Appeal Court rules 6 (1) and 5 (3)
respectively, and because the fact that the original applica-
tion was brought ex parte does not relieve the appellant of
the necessity to bring before the Appeal Court the party who
will be affected by the appeal if successful. On an applica-
tion for a review of the refusal of the Registrar, under
Appeal Court Rule 1 (2).
Held (dismissing the application for review): That on the
authority of Van Schalkwyk's case. 1952 (2) S.A. 407 the
respondent must be brought before the Court of appeal,
and that unless this is done the Court has no jurisdiction to
hear the appeal.
Cases referred to:
Ex parte Van Schalkwyk, N.O. and Hay N.O. 1952 (2) S.A.
407.
Statutes referred to:
Rules 1 (2), 5 (3) and 6 (1) of the Native Appeal Court
rules.
For applicant: Dyason. Douglas, Muller & Meyer.
.
71
SOUTHERN NATIVE APPEAL COURT.
THINTA v. THINTA.
N.A.C. CASE No. 26 of 1958.
Kino William's Town: 15th and 16th October, 1958. Before
Balk, President, Harvey and Leppan, Members of the Court.
PRACTICE AND PROCEDURE.
Jurisdiction of Native Appeal Court in case purporting to have
been tried by Magistrate's Court — When ground on which
appeal struck off roll taken ex mero motu. no costs awarded.
Summary: From the record it appeared that the action haa
been tried, and the judgment given in the Magistrate’s Court
as the words “ In the Magistrate’s Court ” appeared at the
head of the notes of the trial and the signature of the pre-
siding judicial officer over the designation of “ Magistrate ”
throughout the record. In the pleadings and the reasons for
judgment, however, the heading “In the Native Commis-
sioner’s Court ” appeared.
Held: That where, according to the record, the action purports
to have been tried, and the judgment given, in the Magis-
trate’s Court, a Native Appeal Court has no jurisdiction to
decide the appeal even though the pleadings and the reasons
for judgment are headed “ In the Native Commissioner’s
Court ”.
Held further: That as the ground on which the appeal was
struck off the roll was taken ex mero motu, there should be
no order as to costs.
Cases referred to:
Rex y. Radebe & Others, 1945 A.D. 590.
Read v. S.A. Medical & Dental Council. 1949 (31 S.A. 997
(T.P.D.).
Yeni v. Jaca, 1953 N.A.C. 31 (N.E.).
Appeal from a civil case heard in Grahamstown.
Balk (President): —
This is an appeal from the judgment of a Court in a civil
-action.
Whilst this Court was considering argument advanced for both
parties on the merits of the appeal, it came to its notice that,
according to the record, the case appeared to have been tried,
and the judgment appeared to have been given, in a Magistrate’s
Court and that it was, therefore, doubtful whether this Court had
jurisdiction to determine the appeal regard being had to sections
thirteen and fifteen of the Native Administration Act, 1927, which
provide for the constitution of this Court and its jurisdiction.
This question was, therefore, raised by this Court ex mero motu
and, at its request, was argued on behalf of both parties. That
it was proper for this Court to take this course is apparent from
Rex v. Radebe and Others, 1945 A.D. 590, at page 597.
In the course of the argument, Mr. Stewart, who appeared for
respondent, applied for a postponement of the hearing of the
appeal to permit his correspondents to go into the matter with
the Magistrate concerned. Mr. Hcathcote, who appeared for appel-
lant, opposed the application. It was not clear to this Court that
any useful purpose would be served by allowing a postponement.
5213014—2
72
Moreover, such a course would have mulcted the parties in addi-
tional costs; and here it must be borne in mind that a postpone-
ment for the purpose indicated would necessarily have involved
a postponement to next session when it may well not be possible
for this Court to be constituted as it is at present in that two
of its members are Native Commissioners and may not be avail-
able then. The application was, therefore, refused. Here it should
be mentioned that in reply to this Court Messrs. Stewart
and Heathcote both gave the assurance that they had been
allowed sufficient time to prepare their argument on the question
of jurisdiction.
Mr. Heathcote conceded that, in the circumstances, this Court
had no jurisdiction to decide the appeal. Mr. Stewart, however,
contended that it had such jurisdiction as the pleadings and also
the reasons for judgment were headed “ In the Native Commis-
sioner’s Court” which, in his submission, indicated that the
words “ In the Magistrate's Court ” appearing at the head of the
notes of the trial and the signature of the presiding judicial
officer over the designation of “ Magistrate ” throughout the
record, constituted patent errors. But, the mere fact of the
heading “ In the Native Commissioner’s Court ” in the pleadings
and reasons for judgment does not necessarily indicate that the
heading “In the Magistrate's Court” preceding the notes of the
trial was a patent error. Mr. Stewart also submitted that the
pleadings and reasons for judgment formed part of the pro-
ceedings and that this aspect had to be borne in mind with
reference to the language of the above-mentioned sections of the
Native Administration Act, 1927, i.e. that those documents being
part of the proceedings and being headed “ In the Native Com-
missioner’s Court ” showed that this Court had jurisdiction within
the meaning of those sections. But, in my view, the crucial part
of the proceedings for the purposes of the sections must be taken
to be the trial and judgment, regard being had to the language
of the sections; and as those proceedings purport, according to
the record, to be proceedings of the Magistrate’s Court presided
over by the Magistrate, this Court has no jurisdiction to deter-
mine the appeal.
The question of costs in this Court in the event of its holding
that it had no such jurisdiction was also argued. Mr. Heathcote
submitted that there should be no order as to costs in this Court
as the respondent had not objected to the appeal in the manner
provided by Rule 14 of the rules of this Court, and was, there-
fore, not entitled to any costs. Mr. Stewart, on the authority of
Read v. S.A. Medical & Dental Council, 1949 (3) S.A. 997
(T.P.D.), at pages 1024 and 1025, contended that respondent was-
entitled to the costs. But, to my mind, it is not clear that that
case is apposite here, firstly, because the point on which the
appeal turned was taken by this Court ex mero motu, see Yeni
v. Jaca, 1953 N.A.C. 31 (N.E.), at page 34; and, secondly, because
there appears to be substance in Mr. Heathcote’s argument.
In the result the appeal falls to be struck off the roll with no-
order as to costs.
Harvey, K. G. (Member): I concur.
Leppan, A. W. (Member): 1 concur.
For Appellant: Mr. E. Heathcote of King William’s Town.
For Respondent: Mr. T. Stewart of King William’s Town.
73
SOUTHERN NATIVE APPEAL COURT.
MGEDEZI v. BONTSA and ANOTHER.
N.A. C. CASE No. 29 of 1958.
Umtata: 30th September, 1958.
Before Balk, President. Grant and King, Members of the Court.
CONFLICT OF LAWS.
Liability of kraalhead for tort of inmate — System of law to be
applied— Considerations.
Summary: Plaintiff (now appellant) sued first defendant for
damages for seduction and pregnancy joining the father
(second defendant) in his capacity as kraalhead. Consent
judgment was entered against first defendant and the second
defendant was absolved from the instance on his plea that
by virtue of his common law marriage and the full emancipa-
tion of his son (first defendant), he (second defendant) was.
not liable.
Held: Liability of a kraalhead for a delict committed by an
inmate of his kraal is based not on relationship but on the
control which he is expected to exercise over all inmates of
his kraal, so that a kraalhead’s civil marriage does not in
itself preclude such liability in a proper case.
Held further: That where it is shown that the kraalhead in the
main observed Native law — particularly where he has done
so to the extent that he was himself to blame for being sued
in respect of a tort committed by an inmate of his kraal —
Native law should be applied.
Cases referred to:
Tonjeni v. Tonjeni, 1947 N.A.C. (C. & O.) 8.
Skenjana v. Guza & Others, 1944 N.A.C. (C. & O.) 102.
Mhlokonyelwa v. Ngoma, 1 N.A.C. (S.D.) 197.
Nteteni v. Nkonhla, 1 N.A.C. 172.
Ex Parte Minister of Native Affairs: In re Yako v. Beyi.
1948 (1) S.A. 388 (A.D.).
Umvovo v. Umvovo, 1953 (1) S.A. 195 (A.D.).
Nombida v. Flaman, 1956 (2) N.A.C. 108 (S).
Appeal from the Court of the Native Commissioner at Qumbu..
Balk (President): —
The plaintiff sued the two defendants in a Native Commis-
sioner’s Court for three head of cattle or their value, £30, as.
damages for the seduction and pregnancy of his daughter, aver-
ring. inter alia, in the particulars of his claim, that the first defen-
dant was the tort feasor and that the second defendant was liable
for the first defendant’s torts as the latter was unmarried and
resident at the former’s kraal.
Judgment was entered by the Native Commissioner’s Court for
plaintiff as prayed against the first defendant, by consent.
In his plea, as amended with the leave of that Court, (herein-
after referred to as the second defendant’s amended plea), the
second defendant averred that the first defendant was his lawful
son by a Christian marriage and was fully emancipated and that
he was accordingly not liable for the first defendant’s torts.
74
The Assistant Native Commissioner a quo upheld this plea
and absolved the second defendant from the instance.
The appeal from that judgment is brought by the plaintiff on
the following grounds: —
“ 1. That the Assistant Native Commissioner erred in holding
that defendant No. 2, by reason of the fact that he is
married by Christian Rights, is not liable for the torts
of defendant No. 1 his unmarried son who is an inmate
of his kraal.
2. That the judgment is against the weight of evidence the
proved facts and the probabilities of the case.”
The uncontroverted evidence for the plaintiff establishes the
alleged seduction and pregnancy and it is admitted in the defen-
dants’ plea that the first defendant was an inmate of the second
defendant’s kraal. It was admitted during the course of the trial
in the Court below that the first defendant was unmarried at the
time of the seduction. It follows that the only matter for decision
is whether the Assistant Native Commissioner was correct in sus-
taining the second defendant’s amended plea.
That the first defendant is the second defendant's son by a
marriage according to Christian rites is borne out by the evidence
adduced on behalf of the second defendant. There is, however,
no evidence indicating that the first defendant was emancipated.
From the Assistant Native Commissioner's reasons for judg-
ment, it appears that in upholding the second defendant’s amended
plea, he relied on the dictum in Tonjeni v. Tonjeni, 1947 N.A.C.
(C. & O.) 8 that a civil marriage between Natives does not
create “ a house ” in the sense of the definition of that term in
section thirty-five of the Native Administration Act, 1927. As far
as can be gathered from those reasons which are rather nebulous
in this respect, he relied on that dictum because, as submitted in
Seymour’s Native Law in South Africa, at page 22, it indicates
that the husband of a civil marriage cannot bear the relationship
of kraalhead towards his children by such a marriage and, there-
fore, cannot be held liable under Native law for their delicts.
But, as contended in the argument on behalf of the appellant,
that proposition loses sight of the fact that the principle under-
lying the liability in Native law of a kraalhead for a delict com-
mitted by an inmate of his kraal is not relationship but the con-
trol which a kraalhead is expected to exercise over all the inmates
of his kraal irrespective of whether they are relations of his or
not, see Skenjana v. Guza & Others, 1944 N.A.C. (C. & O.) 102,
at page 103, and Mhlokonyelwa v. Ngoma, 1 N.A.C. (S.D.) 197,
so that the Assistant Native Commissioner erred in upholding the
second defendant’s amended plea on the basis of relationship.
Although the Assistant Native Commissioner does not expressly
state that he applied common law in deciding the issue raised
in the second defendant’s amended plea, it is implicit in his
reasons for judgment that he did apply that legal system. His
reasons for doing so are contained in the following excerpt from
his judgment: —
“ With the progress that the Native people have made and
the fact that more and more of them are making use of the
law of the land in their dealings, it is felt that the time is
ripe for them to discard customs that are in conflict with the
common law. I have not found the task an easy one but
on the reasons mentioned above and the fact that the ten-
dency is to discard Native law wherever it conflicts with the
common law, I submit that the father of a Christian marriage
should not be liable for the torts of persons living at his
kraal, and that the perpetrator should be answerable for his
own wrongs.”
75
The reasons referred to in the sixth line of the foregoing pas-
sage have already been dealt with above. By “ conflicts ” in that
passage the Assistant Native Commissioner appears to intend to
convey that whereas Native law here provides a remedy against
the second defendant, the common law does not do so, see
Nteteni v. Nkohla, 1 N.A.C. 172, at page 173. It remains to
consider whether the Assistant Native Commissioner exercised a
proper discretion in applying common law regard being had to
the principles enunciated in ex parte Minister of Native Affairs:
In re Yako v. Beyi, 1948 (1), S.A. 388 (A.D.) read with Umvovo
v. Umvovo, 1953 (1) S.A. 195 (A.D.). This aspect of the case
was also fully argued before this Court.
The fact that the second defendant is married according to
civil rites and that the first defendant is his son by such marriage
are undoubtedly considerations favouring the application of com-
mon law. A further reason for preferring that legal system is
that it is the more advanced one, see Nombida v. Flaman, 1956
(2) N.A.C. 108 (S), at page 110. But, to my mind, the overruling
consideration in the instant case is that, as is manifest from the
evidence, the second defendant in the main adheres to Native
custom. That this is so is apparent from the fact that he paid
dowry for his wife, acquiesced in the Native law procedure of
the “ stomach ” being sent to him and when this was done, asked
for the matter to be held in abeyance until the child was born
so that it could be inspected to see whether it resembled the
defendants’ family; and thereafter he sent women to inspect the
child who found that it bore no resemblance to the defendants’
family which resulted in the institution of the instant action.
It follows that not only did the second defendant in the main
adhere to custom, but he did so to an extent that he has only
himself to blame for the plaintiff's having sued him so that it
would be manifestly unfair to allow the second defendant to take
advantage of a defence open to him under common law only.
In these circumstances it seems to me that the Assistant Native
Commissioner’s decision to apply common law is not one that he
could properly arrive at and that Native law falls to be applied
to reach a just decision between the parties.
In the Court below, the plaintiff’s attorney consented to there
being no order as to costs in that Court and the attorneys who
represented the parties in this Court agreed that there should be
no order as to costs of appeal no matter what the outcome of
the appeal was.
In the result the appeal falls to be allowed with no order as
to costs and the judgment of the Court a quo altered to read:
“ For plaintiff against second defendant as prayed with no order
as to costs
Grant, D. S. (Member): I concur.
King, V. S. S. (Member) : I concur.
For Appellant: Mr. E. C. Chisholm of Umtata.
For Respondents: Mr. K. Muggleston of Umtata.
76
SOUTHERN NATIVE APPEAL COURT.
ZAKHELE v. GOBIDOLO.
N.A.C. CASE No. 35 of 1958.
Port St. Johns: 23rd September, 1958.
Before Balk, President. Midgley and Hastie, Members of the
Court.
PRACTICE AND PROCEDURE.
Appeal from Chief's Court — New cause of action.
NATIVE LAW AND CUSTOM.
Close male relative of husband conniving at adultery of latter’s
wife.
Summary: Plaintiff (now appellant) sued defendant (now
respondent) before a chief for five head of cattle or their
value, £50, as damages for adultery committed by defendant
with his wife, followed by her pregnancy. The appeal to
the Native Commissioner’s Court was allowed and the judg-
ment of the lower Court altered to one for the plaintiff for
three head of cattle or their value, £30, for damages for
adultery only. Plaintiff’s brother-in-law alleged in evidence
that he had allowed plaintiff’s wife and defendant to sleep
together at his kraal.
Held: That in an appeal from the judgment of a Chief’s Court
in an action for damages for adultery followed by pregnancy,
it is competent for the Native Commissioner’s Court hearing
the appeal to allow damages based on adultery only as the
award cannot be said to be based on a new cause of action.
Held further: That it is contrary to custom for a close male
relative of the plaintiff to have permitted the latter’s wife to
commit adultery at his (the relative’s) kraal.
Semble: The notice of hearing of an appeal from the judgment
of a Chief’s Court (form N.A. 503) forms an integral part
of the record and should always be included therein.
Cases referred to:
Bayele v. Mtetwa, 1953 N.A.C. 56.
Mtsewu v. Tyaliti, 4 N.A.C. 24.
Appeal from the Court of the Native Commissioner of Port
St. Johns.
Balk (President): —
This is an appeal from the judgment of a Native Commis-
sioner’s Court allowing an appeal against the judgment of a
Chief’s Court and altering the latter judgment to one for plain-
tiff for three head of cattle or their value, £30, with costs.
The plaintiff’s claim as restated in the Native Commissioner's
Court was for five head of cattle or their value, £50, as damages
for adultery committed by the defendant with his customary wife,
Marela, followed by her pregnancy.
77
The appeal to this Court is brought by the defendant on the
following grounds: —
“ 1. The judgment is against the weight of evidence, the facts
found proved and the probabilities of the case as a
whole.
2. That as the case was an appeal from the Court of Deputy-
Chief Lanyanzima Mvinjelwa as an action for damages
for adultery and pregnancy claiming payment of five (5)
head of cattle and the said claim was dismissed by the
Chief’s Court and judgment was entered for defendant,
the judgment of the Native Commissioner’s Court for
three (3) head of cattle for damages for a catch in
adultery was bad in law as such catch in adultery was
not an issue before the Chief’s Court, and was an
entirely new cause of action before the Native Commis-
sioner’s Court, and should have been instituted by way
of summons and not by an appeal.”
Dealing with the second ground of appeal first, it was con-
tended in the argument on behalf of the appellant on the
authority of Biyela v. Mtetwa, 1953 N.A.C. 56 (N.E.), that it was
not competent for the Native Commissioner’s Court to have
awarded the plaintiff damages for a “ catch ” in adultery un-
accompanied by pregnancy in that the claim in the Chief’s Court
was for adultery followed by pregnancy and the former consti-
tuted a new cause of action. Whilst it is true that in basic Native
law a husband could not be awarded damages if he based his
claim on adultery resulting in pregnancy and proved the adultery
but not pregnancy resulting therefrom, this principle was over-
ruled and it was laid down that it was competent to award
damages in such cases, see Mtsewu v. Tyaliti, 4 N.A.C. 24 and
the authorities there cited, so that the award in the Native Com-
missioner’s Court cannot be said to have been based on a new
cause of action. It follows that the second ground of appeal
fails.
Turning to the remaining ground of appeal, viz., the first
ground, it is manifest from the plaintiff's evidence that he had
no witness other than his wife at the Chief's Court because the
other witness mentioned by her, viz., Nomgungwana refused to
give evidence. It also emerges from that evidence that she had
since mentioned the names of two other witnesses whom the
plaintiff called at the Native Commissioner's Court, viz., Tyantolo
and Nongazime. According to the chief’s judgment, the plaintiff
was accorded an opportunity in his Court of calling witnesses
other than his wife, but he did not bring any other witnesses.
In the absence of any explanation in the evidence for the plaintiff
for Marela’s failure to divulge the names of Tyantolo and Non-
gaziwe as witnesses at the Chief’s Court, their evidence in the
Native Commissioner’s Court falls to be regarded as suspect; and
unless their evidence is accepted the plaintiff's case is not
established.
Then there are certain improbabilities in the evidence for plain-
tiff. It seems most unlikely that the defendant should have spent
two nights at Tyantolo’s kraal openly with the plaintiff's wife
as testified to by Tyantolo, supported by Nongaziwe, seeing that,
according to Marela, the defendant had intercourse with her near
a land near her father’s kraal when they first resumed intimacy
after her customary union to the plaintiff and there was good
reason why the defendant should not put himself in the hands
of Tyantolo, who is the plaintiff’s brother-in-law, by openly coha-
biting with the plaintiff's wife at Tyantolo’s kraal. Here it is
significant that Marela stated in her evidence that she and the
defendant were keeping their relations quiet because she was a
married woman. Moreover, as pointed out in the argument on
behalf of the appellant, there is a discrepancy in the evidence for
the plaintiff' which further militates against the success of his
78
case, viz., Tyantolo stated under cross-examination that the defen-
dant had visited his kraal on a prior occasion, i.e., on an occasion
before he had spent the two nights with Marela there, whereas,
according to Marela, Tyantolo asked her who the defendant was
when she came to his (Tyantolo’s) kraal with him on the occasion
that they spent the two nights there. Again, it is contrary to
custom for a close male relative of the plaintiff, such as Tyantolo,
to have permitted Marela to commit adultery at his kraal. Bearing
these factors in mind and also that the onus of proof rested on
the plaintiff as the defendant had denied the alleged adultery, the
plaintiff cannot be said to have established his case.
As pointed out in the argument for respondent, it is obvious
from the evidence of the defendant’s only witness other than
himself, namely, Mtshitshimbela, that the latter was prepared to
go to any lengths and that his evidence that Marela had told
him that the plaintiff did not want her and she had been to the
headman to dissolve their customary union, is not in accordance
with the probabilities bearing in mind that the plaintiff had then
sent her to show her “ stomach ” to the defendant. Consequently
the defendant also failed to establish his case.
Although it is clear from the chiefs judgment that he found
against plaintiff, he did not state specifically whether his judgment
was one for the defendant or one of absolution. It was, however,
conceded in argument for both parties before this Court that the
chief s judgment amounted to one of absolution.
In the result the appeal falls to be allowed, with costs, and
the judgment of the Court a quo altered to read: —
The appeal from the judgment of the Chiefs Court is dis-
missed, with costs, but that judgment is altered to read :
‘ Absolution from the instance, with costs
It is observed that the notice of hearing of the appeal from
the judgment of the Chiefs Court (form N.A. 503), did not
accompany the record. This document forms an integral part
of the record and should always be included therein.
Midgley and Hastie, Members, concurred.
For Appellant: Mr. J. G. S. Vabaza of Libode.
For Respondent: Mr. H. H. Birkett of Port St. Johns.
NORTH-EASTERN NATIVE APPEAL COURT.
NZUZA v. KL MAI.O.
N.A.C. CASE No. 49 of 1958.
Vrvheid: 1st October, 1958. Before Menge, President, and
Ashton and Schultz. Members of the Court.
NATAL CODE OF NATIVE LAW.
Meaning of section 86 — Lobolo cattle — Alternative money value.
Summary: Plaintiff had obtained judgment against his wife of
a customary union and against her father for a dissolution
of the union, custody of the children and the return of his
lobolo less the usual deductions for the children of the
marriage. In an appeal by the father on the merits and on
the ground that no alternative money value had been fixed
for the lobolo cattle.
Held (on the facts): That the lobolo less the deductions made
W'as returnable.
79
Held further: That the plaintiff was entitled to ask for specific-
performance, and that if he is unable to recover his actual
stock he can, without proof of or agreement as to the value-
of the animals, claim payment at the rate of £5 per head.
Statutes cited: Section eighty-six, Proclamation No. 168 of
1932.
Appeal from the Court of Native Commissioner, Nongoma.
Menge, President (delivering the judgment of the Court): —
Before the Assistant Native Commissioner. Nongoma, plaintiff
sued his wife by Native custom (first defendant) and one Mah-
lungwane (second defendant) for the return of his lobolo of 11
head of cattle and the custody of his two children. The second
defendant is the father of first defendant. That appears from the
evidence; the summons does not say so. The summons also does
not claim dissolution of the customary union, but plaintiff asked
for this in his evidence.
The plea discloses no defence. In so far as it means any-
thing it admits the plaintiff’s allegations. It is signed by both
defendants (her and his mark) but it refers only to first defendant.
There is no plea by the second defendant at all. That being so
the Native Commissioner should have ascertained precisely on
what grounds the defendants are opposing the acton before he
heard evidence. The defendants are illiterate persons and the
Clerk of the Court was obviously not capable of helping them
with their plea.
Actually the evidence which was given does not take matters
much further as far as the attitude of the defendants is con-
cerned. The evidence for plaintiff discloses that he married first
defendant in 1954; that he paid 11 head of cattle to second
defendant; that there were two children; that first defendant
deserted plaintiff and went to stay with second defendant in 1955
and that she has not returned to plaintiff despite the latter’s
attempts to induce her to return. All this the defence evidence
does not attack. One is still as much in the dark about the
defence as at the close of pleadings. In these circumstances it is-
perhaps unfortunate that, according to the record, the parties
were not asked to address the Court before judgment was given.
However, the Native Commissioner found for plaintiff. He
granted dissolution of the customary union; awarded plaintiff
custody of the children and the return of eight head of cattle.
He also declared second defendant to be the guardian of first
defendant. There was no order as to costs.
An appeal is now brought by the second defendant only. The
grounds are stated as follows: —
“ 1. That the judgment is against the evidence and the
weight of the evidence.
2. That the learned Native Commissioner erred in finding
if he did so find, that any or all the blame attached to the
respondent’s wife in connection with the proceedings of the
dissolution of the customary union and under the circum-
stances disclosed the learned Native Commissioner should
not have ordered the appellant to return any cattle to the
respondent or at least should have ordered a lesser number
than that which he did so order.
3. That the learned Native Commissioner erred in failing
to fix an alternative value in money for the said cattle.”
Having regard to what has already been said there is no need
to deal further with ground 1. Grounds 2 and 3 never occurred
to defendant during the proceedings. They are an after-thought.
However, neither of these assists the defendant. As to ground 2
there is nothing in the record of this case to suggest that the
80
plaintiff should not recover all his lobolo, i.e. 10 head of cattle
less one beast for each of the two children. Mr White who
appeared before us for the appellant argued that one beast should
at least be deducted in respect of a third child which, according
to first defendent's evidence, was born in April, 1958. This
child was born three months after the plea was filed. No
mention of a pregnancy was made in the plea, nor was the child
mentioned in the cross-examination of plaintiff when the case
was heard in May. The child was first mentioned by first defen-
dant in her evidence. It must have been conceived in 1957;
but the Native Commissioner found— and in our opinion rightly
so — that the desertion took place in 1955. Consequently it can-
not be said that plaintiff is the father of this child in the face
of his denial which appears from the cross-examination of the
first defendant. The position is apparently accepted by the first
defendant who is not appealing. Consequently no deduction can
be made in respect of this child. As to the third ground plain-
tiff asked for the return of his lobolo cattle, that is specific
animals, and if these are still in the possession of defendant, there
seems to be no reason why specific performance should not be
decreed. If specific performance is no longer possible, then no
doubt section 86 of the Code applies. This section reads as
follows: —
“ 86. Lobolo shall consist of fair average cattle or their
equivalent in other stock or property and for the purposes
of any dispute the value of each head of lobolo cattle shall
be regarded as five pounds; provided that the Supreme
Chief may by proclamation vary this assessment from time
to time.”
Unfortunately the meaning of this section is, like so many
provisions of the Code, far from clear. What is the effect of
the words “for the purposes of any dispute”? Grammatically
the word “dispute” here relates to value; the dispute must be
about the value and not, as Mr. White suggested, about the
liability to pay or refund lobolo. Otherwise strange results might
follow: for instance, in an action for the return of lobolo a
defendant may in his plea admit the receipt of say six head of
cattle valued at £20 each and deny liability for the refund. If
then the word “ dispute ” in section 86 relates to any dispute
connected with the lobolo, including a dispute as to liability for
a refund, this very denial of liability would — in spite of the
admission as to the value — preclude the plaintiff obtaining more
than £5 for each animal.
But even if the “ dispute ” relates only to the value of lobolo
cattle anomalous results must follow. Suppose that in the fore-
going example the plaintiff had paid to defendant, perhaps at the
latter's special request, instead of six head of ordinary cattle, two
very fine stud cows fairly valued at £60 each. Defendant may
realise that he has no defence to a claim for the refund of this
lobolo; but he can nevertheless virtually defeat the plaintiff’s
claim by merely disputing the value. He need merely allege that
the value is, say, £50 per head in order to have the plaintiff’s
claim reduced ipso facto to — £5 per head. It seems to be im-
possible to make sense of this section unless one reads into it
after the words “ five pounds ” some such qualification as “ in
the absence of proof of or agreement on the value ”... In other
words the value assigned by a party to lobolo cattle may not by
virtue of the provisions of section 86 be disputed if it does not
exceed £5.
In this case there was no dispute as the money value of the
cattle at all. No such value was even mentioned, much less
proved. Consequently, if plaintiff cannot recover the actual eight
head of stock claimed, he is entitled to fix a money value which
cannot be disputed and which, therefore, requires no proof,
viz. £5 per head. In other words, where the value of lobolo
cattle is not proved or agreed on the provisions of section 86 of
the Code come into play.
81
The appeal is dismissed with costs.
Ashton, Permanent member: —
I agree that the appeal should be dismissed with costs and
would just like to add a few remarks.
In regard to the third ground of appeal no claim was made
for the money equivalent of the lobolo cattle and no evidence
as to value was placed before the Assistant Native Commissioner.
He was accordingly not wrong in fixing no monetary equivalent.
In any case where the value of lobolo cattle is not proved or
agreed on then and then only do the provisions of section 86
•of the Natal Native code come into play. The point is not well
taken and Mr. White agreed that his point was probably prema-
ture.
In regard to the number of cattle returnable the husband is not
interested in the adulterine child and I do not feel that the
Assistant Native Commissioner’s award should be altered.
For Appellant : W. E. White.
Respondent in person.
NORTH-EASTERN NATIVE APPEAL COURT.
XABA v. MDHLULI.
N.A.C. CASE No. 52 of 1958.
Vryheid: 29th September, 1958. Before Menge, President, and
Ashton and Vosloo, Members of the Court.
PRACTICE AND PROCEDURE.
Messenger of the Court — Meaning of Native Commissioner's
Court Rule 14.
Summary: A Native deputy-messenger of the court, having
been sued in a matter arising out of the performance of his
duties set up the defence that only his principal and not he
should have been sued. The Native Commissioner upheld
this defence under Rule 14 of the rules for Native Com-
missioners’ Courts. On appeal —
Held: Rule 14 does not alter the common law liability of a
deputy-messenger of the court for damage caused by his
own wrongful acts.
Appeal from the Court of Native Commissioner, Vryheid.
Menge (President): In this matter plaintiff (the present appel-
lant) sued defendant (respondent) for £30 on a cause of action
which is somewhat indifferently set out, but which sufficiently
avers misappropriation of funds belonging to the plaintiff.
The original plea does not make sense. An amendment was,
however, allowed at the commencement of the proceedings from
which it appears that the defendant did come into possession
of the £30, but that he disposed of portion thereof in a lawful
manner and handed the balance over to plaintiff. The parties
were not represented beyond the stage of filing pleadings.
At the hearing the Native Commissioner rightly placed the
onus to begin on the defendant. It appears from his evidence
that he was at the time Deputy Messenger of the Court; that he
received the £30 in question in that capacity for the credit of
plaintiff; that he attached portion thereof to satisfy certain writs
against the plaintiff, and that he paid out the balance of
£15. 10s. 3d. to the plaintiff.
82
At the close of the defendant’s evidence the Native Com-
missioner granted a request for the dismissal of the summons on
the grounds that the defendant was only a servant of the Euro-
pean messenger and that he cannot be liable because Native
Commissioners’ Courts Rule 14 makes the messenger himself
responsible.
Plaintiff now appeals on various grounds only one of which
is in point, namely, that plaintiff was not given an opportunity
to answer defendant’s allegation that he was not the Court Mes-
senger.
The appeal must succeed. In his evidence the defendant
stated, in reply to the Native Commissioner, that someone else
was the messenger; that he was in the messenger’s employ on a
monthly basis, and that not he but the messenger should have
been sued, as principal. Directly thereafter, according to the
record, the summons was dismissed without the plaintiff having
been given an opportunity to deal with this defence. That was
unfortunate because it is not a valid defence at all. The Native
Commissioner considers that the words “ for whose actions as
such he shall be responsible ” in Rule 14 absolve the defendant
from liability. But that is not so. At common law the wrong-
doer is always himself responsible for the damage he has caused.
If a regulation makes someone else responsible that in itself
does not absolve the tortfeasor, for the common law is not
presumed to have been altered unless the language used is clear
(see Steyn Uitleg van Wette, Hoofstuk III). Rule 14 does no
more than to make the principal, i.e. the messenger, himself,
liable as well as the deputy.
The appeal is allowed with costs. The Native Commissioner’s
judgment is set aside and the matter referred back for further
hearing.
Ashton and Vosloo, Members, concurred.
Parties in person.
NORTH-EASTERN NATIVE APPEAL COURT.
MONNAKGOTLA v. PITJE.
N.A.C. CASE No. 56 of 1958.
PRKroRtA: 8th September, 1958. Before Menge, President. Ashton
and Steenkamp, Members of the Court. ■
PRACTICE AND PROCEDURE.
Fraud — Rescission of judgment on ground of — Refusal to
rescind rescission judgment — A ppealability — Review — Powers
of Native A ppeal Court to e v punge from record and to 'grant
condonation of late filing of notice of review.
Summary: Appeal and review in a matter where a Native
Commissioner’s court had refused to rescind a judgment
granted by default which had rescinded a prior default
judgment on the ground of fraud. The facts appear from
the judgment.
Held: A Native Commissioner's court has the power under
Rule 73 (a) to rescind a judgment granted by default
rescinding a prior default judgment.
Held further: That a refusal so to rescind is appealable if the
prior rescission was based on fraud.
Held further: (On the facts) that no fraud had been disclosed
and that the original application for rescission was barred
even if fraud had been disclosed.
83
Held further: That the Native Appeal Court has the power to
expunge from the Native Commissioner’s court record
remarks which are unfounded, irrelevant and prejudicial.
Held lastly: That the word “ knowledge ” as used in Rule
74 (9) means knowledge of the facts on which the allega-
tion is based, not necessarily possession of all the evidence
required to prove those facts.
Semble: The Native Appeal Court has power to condone the
late filing of an application for review.
Cases referred to: Botha v. Muir, 1952 (2) S.A. 358 dis-
tinguished.
Statutes, etc., referred to:
Section 15, Act 38 of 1927.
Native Appeal Court Rules 22 and 26.
Native Commissioners’ Courts Rules 73 (o), 74 (9) and 81 (2).
Appeal and review from the Court of the Native Commis-
sioner, Pretoria.
Menge, President, delivering the judgment of the Court: —
This appeal arises out of a refusal by the Additional Native
Commissioner to rescind a default judgment rescinding a prior
default judgment. The proceedings were entirely on affidavit and
the rather peculiar history of the matter as revealed therein
is somewhat as follows:
Defendant in the original action, who is now the respondent,
at one time owed to the appellant (plaintiff in the original
action) the sum of £600 in respect of a loan. On the 20th January,
1947 defendant and plaintiff signed an agreement in terms of
which plaintiff accepted in full settlement of th.s debt a “ one-
half share in the profits of the business of ” defendant. The
terms of this document are rather vague; but the defendant
sought to use it as evidence of an agreement, and as the value of
the matter thereof was manifestly more than £10 it required to
be stamped. It was not stamped and the Court had no right to
admit it, because of the provisions of section twenty-two of the
Stamp Duties and Fees Act No. 30 of 1911. (It has since been
validated at the request of this Court). According to the defen-
dant this agreement became mislaid by him; and as apparently no
profits had materialised thereunder plaintiff demanded repayment
of his loan. Prostestations based on the agreement were of no
avail and so (says the defendant): “ for the sake of peace because
I had been unable to trace the agreement entered into on the
20th January, 1947, I, on seeing an attorney in Pretoria and being
advised by him that should I not be able to produce the original
contract, I would have to pay the amount claimed from me,
signed an Acknowledgment of Debt, . . .”
In terms of this acknowledgment of debt signed on the 8th
August, 1950, defendant then owed to plaintiff the sum of
£767. 3s. 3d. plus certain interest and also £38. 4s. collection
charges, all of which defendant undertook to repay in monthly
instalments of £15 as from 7th September, 1950; and the docu-
ment goes on to say that “ In the event of any one instalment not
being paid on due date, the balance still owing will immediately
become due and payable ”. In 1952 the instalments were con-
siderably in arrear and plaintiff sued for the full amount still due
to him.
Defendant entered appearance but did not file a plea. He had
asked his attorney to defend the action, but (he says): “My
said attorney then informed me that if I could not produce the
agreement entered into on the 20th January, 1947, I would have
considerable difficulty in proving that I was not liable in the
amount claimed by the respondent. Having been advised
accordingly, it was apparently pointless to try and defend the
matter and for that reason, I did not enter appearance to
defend.
84
“ I do not know on what date Judgment was entered against
me, but the Messenger of the Court subsequently called at my
place of business and demanded payment from me in terms of
a Writ of Execution.
“Since that date 1 on various occasions, called at the offices
of the respondent's attorney in order to make arrangements for
the poyment of the money’s alleged to be due to the respondent.”
Eventually on the 12th March, 1952, the Clerk of the Court
entered judgment by default. Attempts were made to levy
execution, the first (according to plaintiff) on the 9th April, 1952.
in March, 1957, defendant found the missing Agreement, but it
was only on the 12th February, 1958, when settlement was again,
demanded, that defendant applied for rescission of the judgment.
The notice of application is indifferently drawn. No judgment
is specified therein and no reference is made to the affidavit which,
so one infers, accompanied it and from which I have already
quoted. No grounds are set out on which rescission is claimed,
but according to the affidavit already referred to it is clear that
fraud is relied on. Notwithstanding what defendant said earlier
in his affidavit ( vide the first of the passages quoted above) he
ends up by saying: “ 1 have been misled by the fraudulent mis-
representation of the Respondent in that he, the respondent, well
knowing of the existence and actual contents of the Agreement,,
forced me into signing the Acknowledgment of Debt on the 8th
day of August, 1950”.
On this application the judgment was rescinded on the 3rd
March, 1958.
The plaintiff had decided to oppose the application for rescis-
sion, but owing apparently to a clerical error in the office of his
attorney it was thought that the application would only be heard
on the 5th March, 1958. Consequently on the 3rd April, 1958,
plaintiff was in turn in default. He thereupon applied for a
rescission of the order of the 3rd March, rescinding the original
judgment. This application was refused on the 6th June, 1958, on
the ground that there is no provision for the rescission of a judg-
ment rescinding a judgment.
On the 20th June, 1958, plaintiff noted an appeal against each
of these judgments. He has at the same time brought both
judgments in review. Finally he has asked for condonation of
the late noting of the appeal and review concerning the earlier
judgment on the ground that plaintiff had sought first to exhaust
his remedies in proceedings before the Native Commissioner
which were only finalised on the 6th June, 1958.
This Court granted condonation as regards the appeal, but
refused condonation of the late noting of the review. It is
probable that this Court can by virtue of the powers conferred
by section fifteen of the Native Administration Act, 1927, or
even under Rule 26 condone the late filing of an application for
review notwithstanding the absence of such provision in Rule
22; but we feel that the grounds on which this particular applica-
tion is based do not amount to a “ grave irregularity or illegality ”
for the purposes of that rule and that, therefore, the appeal,
which is in any event now before us, is the proper procedure.
Consequently the following matters are now before this
Court : —
(a) A first appeal gainst the rescission judgment of 3rd March,.
1958, on the grounds (omitting one which it is not neces-
sary to deal with) that no fraud has been disclosed and
that, even if it had, the application was out of time;
( b ) a second appeal against the judgment of 6th June, 1958,
refusing rescission of the rescinding judgment on the
ground that “ the Native Commissioner erred in holding
that there is no provision in the rules of the Native Com-
missioner’s Court for the rescission of an Order rescinding:
a judgment granted by default and
85
(c) an application for a review of the proceedings which cul-
minated in the judgment of 6th June. 1958, and in which
is sought an order setting aside the default judgment and
expunging from the record certain remarks made by the
Additional Native Commissioner when he gave that judg-
ment.
Counsel first dealt with the application to expunge. It appears
that the Additional Native Commissioner on that occasion made
certain remarks which impute dishonest conduct to a member of
the firm of attorneys acting for plaintiff. On the information
which the Additional Native Commissioner had before him these
remarks were completely unfounded and unnecessary. (The judg-
ment goes on to deal further with the remarks and then continues!:
Mr. Roberts asked that these remarks and also some further
remarks in the same strain appearing in the Additional Native
Commissioner's reasons for judgment be expunged from the
record. He submitted that this Court has the right to do this,
at common law and under section fifteen of the Native Adminis-
tration Act, 1927.
Mr. Prinsloo who appeared before us on behalf of the defen-
dant intimated that he did not actually oppose the application,
but he nevertheless addressed the Court at some length pointing
out that, although he considered the remarks to be improper
and held no brief for the Native Commissioner on this issue, it
did not really affect the parties in the present appeal in as
much as the Additional Native Commissioner did not, according
to his written reasons, let his views on the articled clerk’s conduct
influence his decision on the issue between the parties. This raises
the question whether the plaintiff has a sufficient interest to bring
the application. If he has not. then important questions of proce-
dure and, as the articled clerk concerned is not a native, even of
jurisdiction present themselves. True, Mr. Roberts himself des-
cribed the offending remarks as completely irrelevant, but he
also argued that they were prejudicial to the plaintiff. There can
be no doubt that that is so. After all the plaintiff had relied on
the articled clerk's affidavit to support his case — a case which, in
terms of the Native Commissioner’s judgment, still had to be
decided. Clearly he is prejudiced if the Native Commissioner then
holds that the affidavit is tainted with fraud.
It follows that the plaintiff had a sufficient interest in the
matter to bring the application; and it certainly is well founded
The reasons for judgment form part of the record; consequently
there, too, the offending passages mus1 be expunged. The Court
clearly has the power to do this under section fifteen of the
Act. For these reasons we ordered the Registrar to expunge
from the record the passages referred to in paragraph 6 (a) of the
application for review, namely the last paragraph on page 28 and
paragraphs 7 and 8 on pages 55, 56 and 57 of the record.
The view we have taken concerning the appeals before us
make it unnecessary to deal further with the application for
review and with the submission of Mr. Roberts that the Native
Commissioner’s refusal to rescind the rescinding judgment is a
“ grave irregularity or illegality ” for the purposes of Rule 22.
In regard to the first appeal Mr. Peart contended that no fraud
has been disclosed and that even if it has the application before
the Native Commissioner was barred by lapse of time. As
regards the second appeal he maintained that the Native Com-
missioner was clearly wrong in holding that there was no provi-
sion for rescinding a recission judgment. He felt, however, that,
he had difficulty in showing that the refusal was appealable. He
relied on the application for review in this regard, but main-
tained that if the first appeal was successful all the legal aspects
of the second appeal would be purely academic.
Mr. Prinsloo argued that fraud was disclosed and that the
evidence thereof only came to light in March, 1957, when the
agreement was found. He also argued that the order attacked
86
in the second appeal is not appealable and that, in any event, the
Native Commissioner had no power to rescind a rescission judg-
ment.
We consider that the plaintiff must succeed on the first appeal.
The defendant was on his own showing in wilful default on the
12th March, 1952, but in bringing his application for rescission
of the default judgment he relied (successfully as it turned out)
on fraud, a factor which, as Mr. Peart correctly pointed out,
makes that rescission appeable [see Terblanche v. Thyssen &.
Another, 1957 (4) SA. 244]. Actually there is nothing whatsoever
to support the allegation of fraud on the part of the plaintiff.
Mr. Prinsloo admitted that it was not fraud in the usual sense
but he thought that it was nevertheless fraud for the purposes of
the Native Commissioners' Courts Rule 73. Mr. Peart argued
with much force that in the light of Schierhout v. Union Govern-
ment, 1927 AD. 94. fraud cannot be anything short of the con-
duct defined as such for the purposes of criminal law. Be that as
it may, at least there must be some falsehood or deceit — dolus
mains; yet nothing in the affidavit of the defendant even sug-
gests any falsehood or deceit either by sponken word or in the
■conduct of the plaintiff.
But even if we are wrong in concluding that no fraud is dis-
closed, the application for rescission was still barred by Native
Commissioners’ Courts Rule 74 (9), there being no application
for removal of the bar under Rule 84 (5). It is clear that what-
ever fraud there was must have been known to defendant for
almost 8 years before he took action. The position here differs
radically from that in Botha v. Muir, 1952(2) 358 where the mean-
ing of the word “ knowledge ” of fraud as used in a rule corres-
ponding to Rule 74(9) is discussed. In that case the party alleg-
ing fraud was for more than a year before he took action in
possession of information which had aroused his suspicions and
of which the learned judge said: "it seems to me to fall short
of the required knowledge and merely amounts to information on
which plaintiff could not reasonably be expected to take action ’.
It was only later, within 12 months of taking action, that he
became possessed of “ knowledge of the perjury sufficient for him
to take action” (p. 365). In the present case, however, the defen-
dant was ever since the 8th August, 1950, in possession of the
full facts relating to what he considered was fraud. He did not
merely suspect the existence of the agreement. He knew it
existed. Finding it had a purely procedural value; it would
facilitate proving what he wanted to establish. It did not add to
the knowledge which he already possessed ever since the 8th
August, 1950. To argue otherwise is to give to the word “ know-
ledge ” as used in Rule 74 (9) some such meaning as: Being in
possession of all the evidence one would wish to produce.
It follows that the rescission of the default judgment must be
set aside. That would have ended the matter, but it is necessary
to deal with the second appeal because it affects the question
•of costs in the Court below.
The Additional Native Commissioner’s reasons for judgment
do not assist us; but Mr. Prinsloo contended that the refusal to
rescind a judgment granted by default rescinding a prior default
judgment did not fall within the ambit of Native Commissioners’
Courts Rule 81 (2) as. apart from the question of costs, it did
not have the effect o{ a final judgment. But he was unable to
explain a difficulty which Steenkamp, Member, foresaw in this
.connection, namely, that the refusal has the effect of leaving as
'res judicata the Native Commissioner’s decision that the judg-
ment had been obtained by fraud — in other words, plain'iff will
not in any future proceedings be able to remove the stigma of
fraud attaching to his cause of action. Clearly, therefore, the
refusal is appealable; and the appeal must also succeed because
there is no reason whatsoever to suppose that such a refusal is not
a judgment for the purposes of Native Commissioners’ Courts
Rule 73 (a).
87
The question of costs was not specifically argued but there
does not appear to be any reason why these should not follow the
ordinary rules. If the plaintiff had in the first instance appealed
against the rescission of the default judgment all the further
proceedings culminating in the second appeal would have become
unnecessary and considerable costs would have been saved. What
is more, he would have had a more advantageous decision than
the procedure he adopted could have brought about. By asking
that the rescission judgment be rescinded he pursued a lesser
remedy in that, had the order been granted, he would still have
had to defend the application for rescission. But, unfortunate
as it may be, it is hardly possible to blame the plaintiff for adopt-
ing the course he did. He no doubt considered it his duty to
exhaust his remedies in the Court below before risking an appeal
against a rescission judgment granted on an application which, as
I have already pointed out, was not very specific as to the
actual causa relied on. Plaintiff could hardly have foreseen at
that stage that the course he was taking might in the end occasion
unnecessary costs. Besides, the defendant is himself very much
to blame. Instead of agreeing to a rescission of the rescinding
judgment and having his allegations squarely decided on the
merits, he opposed the application on the basis of the tenuous
argument that such a rescission is not technically possible. Indeed,,
there is very little in this record to evoke sympathy for the defen-
dant.
Had the Additional Native Commissioner granted rescission of
the rescission judgment, which he should have done, the proper
order as to costs would have been costs in the cause, as was
ordered when the original judgment was rescinded. It follows,
therefore, that in the result the defendant must bear all the lower
Court costs.
The appeals are allowed. The order of the Native Commis-
sioner dated 3rd March, 1958, is set aside and for it is sub-
stituted : “ Application refused with costs ”, The order of the
6th June, 1958, is set aside with an order that the defendant pay
the costs of all the proceedings subsequent to the 3rd March,.
1958. The respondent is ordered to pay the costs of the proceed-
ings in this Court on the basis that the two appeals and the
review constitute one appeal save as to their noting, and exclud-
ing any costs which may have been incurred in respect of the
application to review the proceedings of the 3rd March, 1958.
For Appellant: Adv. A. A. Roberts, Q.C., with him Adv. R. H.
Peart instructed by Metlerkamp, Ritson & Metlerkamp.
For Respondent: Mr. J. D. Prinsloo.
NORTH-EASTERN NATIVE APPEAL COURT.
LUKELE v. MKALIPI.
N.A.C. CASE No. 81 of 1958.
Pretoria; 3rd December, 1958. Before Menge, President, Net
and Lambley, Members of the Court.
PRACTICE AND PROCEDURE.
Practice and procedure — Default judgment illegally entered —
Conflict of laws — Native law and statute law — Ordinance No. 6-
of 1904 (T.) — Applicability to lobolo payments — Costs when
appeal unnecessary.
Summary: A clerk of the Court had entered judgment by
default on a damages claim. Thereafter execution was levied
and interpleader proceedings were taken. In these it was.
521301 1—3
88
revealed that the interpleader claimant had received the
cattle which were attached as genuine lobolo payments, but
without obtaining the transfer certificate required by section
29 of Transvaal Ordinance No. 6 of 1904. The Native Com-
missioner dealt with the claim under Native law and custom,
but nevertheless gave effect to the provisions of the Ordinance
and disallowed the interpleader claim. In an appeal on
the ground that the Native Commissioner in applying Native
law ought not to have applied the provisions of the
Ordinance which are foreign to Native law —
Held (By the Court ex mero motn ): That the entire proceedings
as from the entry of default judgment by the clerk of the
court are null and void.
Held further: There should be no order as to costs of appeal.
Semble (As to appellant’s grounds of appeal): That Native
law can only be applied against the background of the
ordinary law of the land.
Cases referred to:
Lenge v. Hlakotsa, 1954 N.A.C. 60.
Rex v. Ngeshang, 1949 (3) S.A. 843.
Lushaba v. Cindi, 1946 N.A.C. (T. & N.) 27.
Statutes referred to:
Section 29, Ordinance No. 6 of 1904 (T.).
Appeal from the Court of Native Commissioner, Piet Retief.
Menge (President):
This is an appeal in an interpleader action. The record before
us discloses the following happenings: The plaintiff, Betnell
Mkalipi, in an action in the court below issued summons against
the defendant, Jamloed Ndaba. on the 25th January, 1958. for
£50 damages for assault. The defendant remained in default,
and on the 21st February, 1958, the Clerk of the Court entered
a judgment for plaintiff reading as follows: “Judgment by
default for £50 ”, This, incidentally, was not disclosed on the
copies of the record which were furnished, although these copies
were certified as true copies. But it appears from the original,
where the Clerk of the Court’s entry is reflected on the cover
N.A. 253. This omission caused considerable inconvenience.
Actually the Clerk of the Court was wrong in filing the inter-
pleader proceedings with the record of the original action. It
had nothing to do with the latter and formed a separate action
for the purposes of Rule 7 of the Native Commissioner’s Courts
Rules (see Lenge v. Hlakotsa, 1954 N.A.C. 60). Having, how-
ever, combined the proceedings in one record, it was his duty
to see that complete copies of the whole record were furnished.
On the 8th July, a writ of execution was issued. This included
30s. costs claimed in the summons.
Prior to the action the defendant was in possession of certain
cattle; but these had already been “ pointed out ” to one Zefania
Lukele as lobolo for the latter's daughter. Lukele was unable
to accommodate the cattle at the time on the farm where he
stayed and so they remained with the defendant. In January, at
about the time of the assault, this farm changed hands and
thereupon, with the permission of the new owner, Lukele took
delivery of the cattle. Unfortunately it was omitted to comply
with the provisions of section 29 of Transvaal Ordinance No. 6
of 1904, which prohibits the acquisition “ by purchase, barter
or in any other way ” of stock from a native without the
prescribed formalities of a certificate from a justice of the peace
or from two residents of substantial means in the neighbourhood
certifying that the native in question is entitled to transfer the
animals. Consequently, according to various decisions of the
89
Supreme Court and in particular to the judgment in the case of
Rex V. Ngeshang 1949 (3) S.A. 843, the stock in question never
passed out of the ownership of the defendant and never became
the property of Lukele. Nevertheless, certain five head of these
cattle were attached under the writ and placed, temporarily, in
the possession of the plaintiff.
Thereupon Lukele interpleaded. The Native Commissioner
heard the interpleader action on the 12th and 13th August. For
the purposes of that trial the plaintiff in the original case was
plaintiff for the purposes of the interpleader and the claimant.
Lukele, the defendant. At the close of the hearing plaintiff's
attorney relied on the failure to comply with the provisions of
the Ordinance and asked that the stock he declared executable.
The Native Commissioner upheld this contention. He declared
the five head of cattle executable and dismissed Lukele's inter-
pleader claim with costs. The latter now appeals on the follow-
ing ground: — -
“ Die Naturellekommissaris het die vyf (5) beeste van die
appellant beslaglegbaar verklaar in stryd met die bepalings
van die Reg in soverre dat die Naturellekommissaris. nadat
hy sy diskressie ooreenkomstig Artikel If (1) van die Natu-
relle-Administrasiewet No. 38 van 1927, ten gunste van
Naturelle Reg uitgeoefen het, nogtans artikel 29 van Ordon-
nansie 6 van 1904. wat strydig is met Naturelle Reg en
gewoonte cn geen betrekking het op /ofto/u-transaksies nie.
wat eie is aan die Naturelle Reg en deel daarvan vorm, toe-
gepas het.”
The notice of appeal cites Jamloed Ndaba as second respondent,
but both counsel confirmed that he was not a party to the
action.
The appeal must succeed on entirely different grounds. Conse-
quently the ground of appeal set out above was not argued and
not decided. But it can safely be said that the appellant’s
contention seems to rest on a misconception of the provisions
of section eleven (1) of the Act. A Native Commissioner, in
exercising the discretion which this provision vests in him, can
only apply Native law against the general background of the law
of the land. The fact that a dispute is decided in accordance
with the principles of Native law does not exempt the parties
concerned from compliance with the general law of the land
on an entirely independent side issue. The subsidiary question
whether the Ordinance is applicable to the acquisition of stock
in a loholo transaction has not yet been decided as far as we
are aware, but in Lushaba v. Cindi 1946 N.A.C. (T. & N.) 27
this Court assumed that it is.
However, the reason why the appeal must succeed is that the
entire proceedings subsequent to the application for default
judgment are irregular and illegal. The Clerk of the Court had
no right to enter judgment by default as this was a claim for
damages. Only the Court had jurisdiction to enter such a judg-
ment after assessing the amount recoverable [see Native Com-
missioners’ Courjs Rule 41 (7) and compare the case of Sloan
v. Ringer, 15 Prentice-Hall 1930 (I) F. 64], In the case before
us there never was a valid judgment, and it is bv no means
certain that a Native Commissioner’s Court would have awarded
€50 after hearing evidence. Consequently the writ issued is also
invalid. It is not what it purports to be. No valid execution
can be levied under a judgment which is null and void ab initio;
and anything done on the authority of such a writ is illegal.
This Court cannot avoid raising this issue even though the
parties did not raise it, because whatever judgment this Court
were to give on the basis of the original default judgment would
also be illegal fsec Lewis & Marks v. Middcl, 1904 T.S. 291 at
page 303 where the judgment reads: “ . . . upon proof of
invalidity the decision may be disregarded, in the same way as a
90
decision given without jurisdiction, without the necessity of a
formal order setting it aside ”)• Mr. Grobbelaar, for the respon-
dent, felt that he was unable to dispute the Court’s conclusions-
on this issue.
This is the second case heard by us in this Session where a-
Clerk of the Court has entered a default judgment on a damages
claim. I think it is very unfortunate that such mistakes should
occur and that litigants should thereby be involved in unneces-
sary costs. The present proceedings will have to be taken up
afresh as from the stage where application was made for default
judgment; but it is hoped that the views we have expressed on
the appellant’s grounds of appeal and on other aspects of the
case will induce all the parties to arrive at some reasonable
settlement.
On the question of costs Mr. van Rooyen contended on behalf
of the appellant that he should be awarded costs because the
respondent was neglectful in not making sure that his writ of
attachment had been validly issued. Mr. Grobbelaar considered
that there should be no order. He submitted that the respon-
dent was entitled to assume — as everybody concerned with the
case had assumed — that the writ was validly issued. The position'
is that the appeal had of necessity to succeed on a ground not
raised by the appellant; the ground on which the appeal was
brought was at least to some extent based on a misconception,
and in any event the appeal was, on the record placed before us,
not necessary and could have been avoided with the exercise of
due care. We feel, therefore, that there should be no order as
to costs.
The appeal is upheld with no order as to costs. The judg-
ment of the Native Commissioner and all the proceedings sub-
sequent to the request for default judgment are set aside and'
the matter is referred back for hearing.
Nel & Lanbley, Members, concurred.
For Appellant: Adv. R. van Rooyen instructed by Smit &.
Vorster.
For Respondent: Adv. T. Grobbelaar instructed by H. Olmes-
dahl.
VERSLAE
VAN DIE
NATURELLE-
APPELHOWE
1959 (1) en/and (2)
REPORTS
OF THE
NATIVE APPEAL
COURTS
DIE STAATSDRUKKER, PRETORIA
THE GOVERNMENT PRINTER, PRETORr
G.P.-S 6538942— 195 9-60— 700.
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